the roving_reporter

[The roving_reporter shuffles on into autumn, mostly tracking mud and fallen leaves all over ICANN's already soiled reputation. Cheers, T]

Past issues: UDRP? JDRP (1999-11-16); Viral Regulation (1999-11-24); ICANN Journal 1 (2000-09-10); Kicking ICANN Around (2000-10-15)

The current issue is here.

> roving_reporter t byfield [email]

Thu Nov 9 00:00:12 EST 2000

Artificial scarcity redux

As ICANN's notoriety gains by leaps and bounds, it comes as small surprise that there should be over 760 pre-registrations for the meeting in Los Angeles next week. What does surprise, though it really shouldn't, is that ICANN has rented out the Marina Beach Marriott, whose meeting facilities are roughly half the size of the Sheraton Gateway, where last year's sleepier meeting was held. Marriott's site says the facilities have a maximum reception (that is, stand-up) capacity of 650 people.

In connection with its meeting last year, ICANN -- then teetering on the edge of financial oblivion -- arranged to have the Sheraton Gateway's meeting facilities wired, on the grounds that doing so would be useful for subsequent annual meetings.

Wed Nov 8 23:50:54 EST 2000


Kudos to Phil Agre for working overtime culling useful info and pointers about election hi- and lojinks in Florida: see (at least) the 8 November "Florida recount" messages in the Red Rock Eater list archives.

Wed Nov 8 00:49:20 EST 2000

Election envy; Or, The Boardsquatters fight back

A 6 November press release spammed out to journalists by Mary Ann Freedman of Freedman and Associates announced that Ottawa-based intellectual-property lawyer Jonathan Cohen had been elected to ICANN's board of directors. Let's take a look at it.

Ottawa intellectual property lawyer elected to ICANN Board

OTTAWA, November 6, 2000 - Jonathan Cohen, a well-known intellectual property lawyer in Ottawa, has been elected to the Board of Directors of ICANN [...] for a three-year term. He is one of only two Canadians and the only practicing lawyer on the 19-member board. This is Mr. Cohen's second term in office.

"This is a historic year for ICANN," said Mr. Cohen. "It is the first time five directors were elected in a separate, historic online vote. Internet users around the world were given their first opportunity to participate in an online election.

Uh, yeah...but Cohen was elected seven weeks ago by the industry-dominated DNSO (see the announcement here), which the flakkery doesn't mention, not in the public MAL elections it does mention. And, lest you find yourself inclined to write this conflation off as accidental, Cohen's flak quotes him as waxing:

"ICANN is the regulator of a market worth about US $50 billion," said Mr. Cohen, "and it is the first organization to attempt a world-wide election online. Every aspect of this election occurred online - campaigning, nomination, acceptance, voter registration and voting. The implications for a democratic global voting process for the future are astounding."

But all this time ICANN has been insisting that its "mandate is not to 'run the Internet.' Rather, it is to coordinate the management of only those specific technical, managerial and policy development tasks that require central coordination -- the assignment of globally unique names, addresses, and protocol parameters." Yet here we learn -- from a boardmember entering his second term, no less -- that ICANN is the regulator of a $50 billion-dollar market.

As a Board member, Mr. Cohen is serving on ICANN's Executive Search Committee, working to find an appropriate president and CEO for the corporation, and on the Outreach Committee, travelling around the world lecturing to various organizations about how people can get involved in this process, protect their rights and profit from the emerging world of e-commerce. [para about being in "great demand as a speaker"]

Prior to his first election to the ICANN Board, Mr. Cohen was the first President of the Intellectual Property Constituency of the ICANN's DNSO (Domain Name Supporting Organization), as well as a member of the Names Council, the governing body of the DNSO. He participated in the drafting of the Uniform Dispute Resolution Policy (UDRP), the new domain name dispute resolution system which currently applies to every domain name registered around the world in the generic top level domains, such as .com.

Savvy readers (or at least roving_readers) will note the apparent contradiction between the image of Cohen gadding about lecturing on how people can protect their rights and his role in the IPC, a body that spearheads the notion that intellectual property claims trump free-speech concerns. But don't let that distract you from the more curious assertion that the Supporting Organization reps on the Names Council form, in an allegedly bottom-up structure, the DNSO's "governing body."

ICANN is a not-for-profit California corporation headquartered in Marina del Rey, California. It was created in 1998 by the Secretary of Commerce in the United States to provide technical oversight of the international Internet and all generic top-level domains, as well as to ensure that the Internet works on a stable, uniform basis throughout the world. Directors are selected from five geographic regions: Africa, Asia/Australia/Pacific, Europe, Latin America/Caribbean, and North America.

Well, five have been "selected" from five geographical regions; fourteen (Cohen included) haven't, of course. And those five won't be seated until the end of next week's board meeting in LA. Unlike the SO-elected board members, when their two-year term is up, they must vacate their seats; the SO-elected reps, on the other hand, are allowed to stay past their three-year term until their replacements have been found.

But when your election is seven weeks behind you and your board meeting is less than a week away, why worry about details?

Wed Nov 8 00:47:30 EST 2000

Also sprach Cap'n Mike

In "ICANN Excludes New Members from TLD Selection" (posted Tuesday, 7 November 9:04 PM EDT), Kathleen Murphy of Internet World quotes ICANN Maximum Leader Mike Roberts as saying:

"We just try to duck when they complain about it," Roberts said, explaining that such criticism is more aptly directed "inside the beltway," than toward the ICANN board.

The implication -- that ICANN is a proxy for the Department of Commerce -- inaugurates a new phase in ICANN's rhetoric: time was, this claim was the province of ICANN critics (see, for example, Milton Mueller's excellent article, "ICANN and Internet Governance: Sorting Through the Debris of 'Self Regulation'"). The roving_reporter suspects this new glasnost may relate to ICANN's recently expressed concerns about being sued over new TLDs.

Mon Nov 6 01:18:12 EST 2000

Gone rovin'

The roving_reporter has returned from excoriating ICANN at a conference at the venerable SRI. Regular coverage will now resume; some coverage of the upcoming 13-16 November ICANN meeting will also appear in Telepolis.

Mon Nov 6 01:17:11 EST 2000

Indemnifying ICANN

One of the more peculiar -- and, in the roving_reporter's opinion, outrageous -- gems buried in the junkheap of proposals for new TLDs is this offer, found in the .dot / .info / .site / .spot / .surf / .web application filed by Master of the NANPAverse Neustar:

JVTeam recognizes that ICANN may be concerned with regard to the possible legal challenges to a .web registry based upon alleged trademark and other purported rights of certain applicants and non-applicant third parties. Such challenges are without merit [oh really? -- r_r] and should not sway ICANN in its decision-making process. Nonetheless, JVTeam is prepared to meet with ICANN and discuss any legal issue relating to a .web registry. If necessary, JVTeam will indemnify ICANN for legal expenses incurred by ICANN resulting from any legal challenges brought regarding a grant of the .web registry to JVTeam.

Bracing prose, that. So bracing, it seems, that it inspired ICANN to send the following letter to every TLD applicant:

Dear [applicant],

ICANN is in the process of reviewing [applicant]'s TLD Application. As outlined in the October 23, 2000 TLD Application Review Update which appears [here], ICANN may "gather the additional information [it] require[s] by posing specific questions to applicants in e-mail and requesting a written response."

Keeping in mind the goal to evaluate applications to operate or sponsor new TLDs in as open and transparent a manner as possible, both the questions posed by ICANN and the Applicant's responses will be publicly disclosed on the ICANN website.

Accordingly, ICANN requests your reponses to the following questions:

1. State in detail your position as it relates to possible legal claims by certain applicants and/or non-applicant third parties based on alleged trademark, patent or other violations of purported rights in the TLD identified in your application.

2. If you receive a new TLD, state whether you will indemnify ICANN for claims arising from legal challenges regarding your right to operate the new TLD. If you will indemnify ICANN, identify and describe in detail the resources you propose to utilize for the indemnification.

Please provide ICANN with your e-mail response as soon as possible, but no later than 5:00 p.m. Pacific Standard Time on Sunday, November 5, 2000. Please let us know if you are unable to respond by then.

Thank you for your cooperation.

Lisa Polanski

ICANN New TLD Applications Dept.

By, in essence, soliciting bids on behalf of its legal counsel, Jones Day Reavis and Pogue, ICANN is proving once again that JDRP's decision to allow Louis Touton (announcement here, notable [meta-cached] commentary here) to waive a year's salary for his work on ICANN was a shrewd investment.

Mon Nov 6 01:16:05 EST 2000

Toutonic Thunder, Part Tou: Regland sues ICANN

Regland, aspiring reseller (or perhaps re-reserver, or re-pre-registrar) of domains under some of the proposed TLDs ICANN is now weighing, is suing ICANN and, by name, former Jones Day Reavis and Poguer and current ICANN VP-plus, Louis Touton -- in the District Court of Bexar County, Texas. The suit alleges that Touton knowingly and maliciously "made false, defamatory statements" about RegLand.

ICANN's misleading advisory notwithstanding, the suit has little if anything to do with ICANN's public statements about prospective TLDs: Regland's allegations involve private statements -- some reported in this space -- made by Touton to several current "competitive" registrars.

Why Touton would take such an overweening interest in Regland's activities is unclear. The roving_reporter suspects it stems from the threat that pre-registration of domains in new TLDs poses to various "sunrise" or "daybreak" policies -- in essence, plans to give intellectual property claimants first shot in new TLDs as they're rolled out (see this discussion of the issue).

If the case proceeds to substantive action, it could mean serious trouble for ICANN. Even if Regland's suit doesn't get very far, a second lawsuit against ICANN (the first was filed by Afternic) may well exacerbate foreign concerns about ICANN's vulnerability to suits in the famously litigious environment of the U.S. Given ICANN's remarkably cozy dealings with JDRP -- not least among them, hiring Mr. Touton -- may well have placed ICANN's attorney-client privilege at risk.

Fri Oct 27 16:53:04 EDT 2000

Boardsquatters: thrusts, parries, and lies

Come Friday afternoon, when the media famously goes home after a hard week, and what does ICANN do? It tersely and cravenly announces which board members are extending their terms yet again. (The roving_reporter scored three out of four on the other dearly departing.)

Michael Froomkin, ICANN-watcher extraordinaire, has drafted an indignant and eloquent response to the wretched announcement. He doesn't mince words:

I call on Frank Fitzsimmons, Hans Kraaijenbrink, Jun Murai, and Linda Wilson to honor the pledge made at the time you were named: that your term would end not later than two years after your appointment. Resign. It is the right thing to do.

To Froomkin's must-read capsule history we can add ICANN's announcement of 26 October 1998:

Like the Initial Board members, who will serve only until the complete permanent ICANN structure and full Board are in place (planned for the fall of 1999), Roberts is not a candidate to be the long-term President and Chief Executive Officer of ICANN. The Board will immediately begin the process of searching for a long-term President and Chief Executive Officer.

And we can also add Esther Dyson's statements of 8 July 1999 to Congressman Tom Bliley:

Q: 1(f). What are the circumstances under which ICANN's interim board will be replaced by an elected board? Please provide a reasonable estimate of when it is anticipated that this event will take place.

A: [...] The other half of the elected Board, which represents the At Large Directors, is currently expected to be in place no later than (and hopefully before) the second annual meeting of ICANN, which will take place in the fall of 2000. Pursuant to the White Paper and the MOU, the transition process is scheduled to be completed no later than October 1, 2000, and the Initial Directors must all have ended their service by that time.

And we can also add Dyson's sworn testimony of 22 July 1999 before Congress during the "Domain Name System Privatization: Is ICANN Out of Control?" hearings:

Elected Board members. ICANN's elected Directors will join the Board in two waves: the first wave will consist of nine Directors chosen by ICANN's Supporting Organizations; the second wave will be elected by an At-Large membership consisting of individual Internet users. The Board expects the first wave to be completed by November 1999, and the second wave as soon as possible following that. In any event, the process of creating a fully elected Board must be completed by September 2000.

As to the first wave of elected Board members, ICANN expects that the nine Directors to be elected by its three Supporting Organizations (the Domain Name Supporting Organization, the Address Supporting Organization, and the Protocol Supporting Organization) will be selected and seated in time for ICANN's annual meeting in November in Los Angeles.

As to the second wave, it is ICANN's highest priority to complete the work necessary to implement a workable At-Large membership structure and to conduct elections for the nine At-Large Directors that must be chosen by the membership. ICANN has been working diligently to accomplish this objective as soon as possible. The Initial Board has received a comprehensive set of recommendations from ICANN's Membership Advisory Committee, and expects to begin the implementation process at its August meeting in Santiago. ICANN's goal is to replace each and every one of the current Initial Board members as soon as possible, consistent with creating a process that minimizes the risk of capture or election fraud, and that will lead to a truly representative Board.


Addendum: Newsbytes has a short article about Froomkin's thunderbolt, quoting Esther Dyson as saying, "Our sense was that...the preponderance of (public) opinion was that the board should remain at full strength." The reporter added, "Dyson stressed that ICANN had no official comment on the Froomkin statement and that her comments represented her views only and not necessarily those of the ICANN board." Who needs accountable procedures when you can simply substitute your "sense of the preponderance of opinion"? And who needs an official response when you can spin the weekend away with "unofficial" responses couched in the third-person plural?

Thu Oct 26 12:06:49 EDT 2000

Memes and rumors

An anonymous font and origin of many things roving_reporterish, to whom we are abidingly grateful, has coined an excellent new term:

Boardsquatter: an "initial," then "interim," now current ICANN boardmember who clings to power.

Current boardsquatters are Geraldine Capdeboscq, George Conrades, Greg Crew, Esther Dyson, Frank Fitzsimmons, Hans Kraaijenbrink, Jun Murai, Eugenio Triana, and Linda Wilson (follow the links from here for more info).

Rumor has it that, in addition to Dyson, Capdeboscq and Crew will be stepping down RSN, leaving some of the more troublesome boardsquatters in place -- most notably Kraaijenbrink.

Thu Oct 26 12:06:37 EDT 2000

.CAOS? Well, no, not really.

The Bureau of National Affairs's excellent "Internet Law News" newsletter (free registration here) culls some useful links from the online tech section of the Globe and Mail about the unfolding saga of Canada's efforts to restructure the administration of the .ca ccTLD. On 18 September, the Canadian Internet Registration Authority (CIRA) amended the rules under which organizations could qualify for a domain under .ca, which had required a federally incorporated company. However, attending this change in policy is a change in governance structure -- and the requirement that all registrants re-register their domains. Not surprisingly, tales abound of servers being overloaded, &c., &c.

The roving_reporter is both skeptical about this re-registration process and intrigued by it. It's hard to imagine anything that could be more "destabilizing" than a procedure that potentially puts every single operating domain under a top-level at risk. And yet the Canadians, G?d bless them, are taking that very risk. Compare ICANN, which insistently hews to the notion that expanding the namespace threatens the "stability" of the net.

On the other hand, the transition in governance of the .ca ccTLD poses other problems -- problems of accountability and legitimacy which are all too familiar to roving_readers. More coverage of the events can be found on the slightly disorienting National Post's site.

Wed Oct 25 21:46:33 EDT 2000

ICANN's best critic takes her first baby steps

Andy Mueller-Maguhn, The European MAL board member-elect, has written a remarkable message to the "icann-europe" list about a chat he had with ICANN chairman of the board and spokesmodel Esther Dyson. His proviso is worth quoting: "Everything I write is an interpretation of things she said, not a transcript. If you quote, quote me, but ask Esther for her own quotes." Having repeated that...

Now that Dyson is indeed preparing to leave ICANN, she promises us she'll become its "best critic." It's a fine phrase to bandy about, but the field's already crowded with some fierce competition for that particular title -- names like Mikki Barry, Gordon Cook, Bret Fausett, Michael Froomkin, John Gilmore, Jamie Love, Milton Mueller, Judith Oppenheimer, Ellen Rony, and Jonathan Weinberg spring to mind. These people have devoted years to curbing the excesses of the ISOC-CORE-gTLD-MoU-ICANN scylla. Dyson, on the other hand, devoted two years to boosting ICANN as an "international," "private-sector," "consensus-based," "transparent," "bottom-up" body for the "technical coordination" of the net. But now that she's leaving, she'll rise -- naturally -- to preeminence in the enemy camp? Yeah, right. O wad some Power the giftie gie us / To see oursels as ithers see us!

Best critic not, but Mueller-Maguhn's account suggests that Dyson may prove to be an interesting critic, as these excerpts from his message make clear:

After she teached me again the well known "no we don't govern and also we have nothing to do with copyright issues" she pointed out, that the space for decisions within ICANN has never been very big, cause the governments - not only the USG - put great pressure on the control of the DNS and also on ICANN in general.

So much for private-sector.

So, any kind of ideas she ever had - that is at least the way she described it to me - was not very much able to adress officially; also because she had no real legitimation, she was not voted by anyone and so she suspected me to be in a much better situation, cause I was elected and might even say, what I think. Which is something new at ICANN.

So much for bottom-up.

Also, it would not be the ICANN board in general, but the representatives of the GAC [Government Advisory Committee] that don't wan't ICANN to be transparent or open for anything the users want, cause the government claim to be the official representatives of the citizens of this planet. Well, what a bullshit. Maybe someone should mention, that governments have their own interests.

So much for transparent and consensus-based.

And, believe it or not, it gets better:

Within this discussion I had one specific question about one of the current directors, Hans Kraaijenbrink. He astonished me at last weeks EC-POP meeting in brussels, when answering to the question of the four directors which should be still elected, cause he said that this was not under discussion any more. The protests from the people in the room just did not seem to reach him on the one hand side, but on the other hand side, I did not have the feeling that this man was acting for his own interests. So, what I asked Esther was, what she could tell me about the people, organization or entity Mr. Kraaijenbrink is working for. She gave at least a totally clear and bright answer saying, that she didn't now if Mr. Kraaijenbrink is working for any governments, but also that he is one of the most resistance directors against transparency and participation of users. When I can beleave her, not all, but some of the directors beheave like him and don't want to see any organization of users or the "at large members"; even the meeting organized by the CPSR on sunday before the official meeting is beeing watched with great fear. [emphasis added]

So here we have it from the horse's mouth: ICANN plans to avoid holding a second round of elections for the remaining four MAL board members. Watch for lots of pomp and circumstance surrounding Dyson's departure at the LA meeting: what better way to upstage the MAL meeting?

The roving_reporter commends Ms. Dyson for her candor. But, really, this is just a beginning: it'll take a lot more to undo the damage she's contributed to over the last two years. So, let's see... where shall we begin? How about: When did ICANN decide there wouldn't be a second round of MAL elections? It might be interesting to examine statements made by ICANN's staff and board after it was decided. Like this one from ICANN CEO Mike Roberts.

Wed Oct 25 00:40:57 EDT 2000

"the familiar stink..."

"...of the Olympic games site selection scandal." MSNBC's Brock Meeks has written a harsh -- and accurate -- overview of the range of TLD proposals. One point ought to be clarified, though. It's neither surprising nor inappropriate that usual suspects such as NSI and the CORE affiliates have proposed new gTLDs to ICANN. Rather, the problem is that they've covered their bets by submitting collaborative proposals.

Members of a newly created company called the Afilias Group have, in one way or another, managed to get their hooks into more than one-third of the domain proposals. Members of Afilias include the current monopoly domain name registry owner, Network Solutions, Inc.

And, lest we forget, the Afilias Group's spokesmodel is Ken Stubbs, chairman of ICANN's Names Council and a member of ICANN's Whois Committee.

Mon Oct 23 21:50:48 EDT 2000

Preliminary pabulum

The agenda for ICANN's 17 October "Special Meeting of the Board via Telephone" lists the following items:

I. Action Items
  • Revisions to budget and related matters
  • Audit Committee report on audit of FY99-00 Financial Statements
  • Approval of minutes of past meetings
  • Thanks to Jean-Francois Abramatic and Pindar Wong
II. Report Items
  • Results of At Large voting and report of Oversight Committee
  • Status report on applications for new TLDs, including review process and public comment forums
  • ICANN meetings for 2001
  • CEO Search Committee
  • Developments on multilingual domain names
  • Plans for Board transition in November

However, the "preliminary report" of the meeting, which ICANN posted today, is devoid of any substance whatsoever. Instead, it consists of:

  • two paragraphs of lacrimose sendoffs
  • ten lines of self-serving salutations and congratulations
  • a one-line board resolution approving the sanitized minutes of the 16 July and 30 August meetings (implying that the minutes of this meeting may not "be approved" until December or January)
  • a one-line board resolution declaring -- get this! -- that "the ICANN board believes the experience gained in the conduct of this vote will be of great value to its forthcoming review of the ICANN At-Large selection process"

That's it. See for yourself.

Mon Oct 23 10:56:03 EDT 2000

What's in a domain name?

According to Adam Lashinsky, Verisign invested in a company, NameZero, which buys new domain names from NSI (i.e., Verisign) then dispenses them to users in exchange for an agreement to subject themselves to advertising. Lashinsky cites analysts who claim that NameZero will account for almost 30 percent of NSI's new domain business -- and he attributes VeriSign's 21% stock drop to investors putting 0 and 0 together. The roving_reporter didn't like Verisign getting into the domain name racket one bit: their interest could only fuel the inane idea that registration of a domain served to "certify" the registrant in some open-ended way. But the essence of certification is a precise definition of the scope and structure of that imprimatur. Thus far, the received wisdom has stressed domains as "productive" in nature -- a stable site from which to disseminate authoritative information. However, if Lashinsky is right, then a rapidly growing segment of new domains are inexorably tied to consumption. Then again, maybe that's exactly what Versign aimed for in buying a company whose monopoly had an appointment with the big chair.

See also this article about the collapsing "value" of domain names.

Sun Oct 22 22:06:52 EDT 2000


In the 19 October teleconference of ICANN's Names Council -- that is, the interface between the various Domain Name Supporting Organizations (see Tony Rutkowski's mind-boggling org chart here) -- the following exchange took place between NC Chair Ken Stubbs, DNSO "Voluntary Secretariat" Elisabeth Porteneuve, and ICANN VP-plus Louis Touton:

Stubbs: ...I'm on the Whois Committee for the DNSO, and I take notice of the fact that there's still a significant amount of concern that's being expressed from various quarters about this issue, and I am going to be pushing that the Whois Committee report be accelerated so that we can try to come up with something substantive, because I believe that this ties in to some extent to what Roger [Cochetti]'s talking about and is probably something that really needs to be discussed in Los Angeles as well.

Porteneuve: Ken?

Stubbs: Yes?

Porteneuve: Elizabeth. Just to put it in the record -- you were just speaking about Whois Committee. Is it the committee of ICANN?

Stubbs: Yes -- Louis, maybe you might take a half-second to elaborate--

Touton: --actually, the Whois Committee is just a group of people that...of various interest...who the ICANN staff asked to get together and try to formulate some proposals or ideas that might then be passed as appropriate to either the Names Council or the ICANN staff, depending on whether it's a policy matter or an implementation matter. So I think what Ken is speaking of is that it's anticipated that some of that committee's work might go to the DNSO for the Names Council to manage in whatever way it deems appropriate.

Pourtenueve: Louis, do you mean that -- do I understand correctly? It is a group of people of various interests requested by ICANN staff.

Touton: That's correct.

Porteneuve: OK...It will be noted.

Stubbs: If they change the name from the Whois Committee to the Whois Group... [laughs] I apologize--I get committees, uh, I guess committee's beginning to connote something that may not necessarily be what is intended here.

As with many things ICANNesque, it takes a certain perverse connoisseurship to discern just how peculiar this exchange is. Porteneuve is no greenhorn when it comes to networking bureaucracies in general (here CV is here) nor to ICANN's in particular (here's Google on the subject). On the contrary: her involvement in ICANN's ontogenesis earned her not just the position of *master for the DNSO but also charges of misusing that position to revise the DNSO's history. That she had never heard of this Whois Whatever It Is is remarkable, to say the least; and the curt, almost pained tone with which she concluded her inquiry -- "It will be noted" -- suggests that she was only too aware of that.

Remarkable, too, was the finesse with which the baton passed from the stumbling Stubbs to the tutelary Touton, whose explanation sets great store in the pseudo-distinction between a "committee" and "a group of people...who the ICANN staff asked to get together and try to formulate some proposals or ideas." Unfortunately, what it doesn't explain away (and Porteneuve knew it) was that this was one of those now-familiar mechanisms through which ICANN manufactures selective consensus.

The roving_reporter wrote to Touton asking for more information about this Whois Group:

  • Was it formed in accordance with ICANN's bylaws?
  • If so, which sections and/or procedures?
  • When was it formed?
  • What is its function?
  • Who is on it?
  • Will its communications be made public? How? If not, why not?

To Mr. Touton's credit, he answered:

The "Whois Committee" is not a committee of the DNSO, but is an informal group of people/registrars who have been looking at technical/operational aspects of implementation of the Whois provisions of the ICANN-NSI Registry Agreement and the Registrar Accreditation Agreement. Section 9 of the Registry Agreement and Section II.F of the Registrar Accreditation Agreement require the provision of various web-based and port 43 services. ICANN staff, which is responsible for implementing the agreements (see Board resolution 99.133), asked the group to provide technical suggestions for ways to implement these provisions without unnecessary burdens on the registrars.

The group actually started in late June, though there were some earlier discussions on the topic at around the time the registrars-coc committee was formed. The Whois committee was put together as a way of gathering some grass-roots input on what systems registrars can use to implement the Whois-related policies adopted in 1999. It has been discussed from time to time, mostly in the registrars constituency, including at Yokohama, with a few volunteers becoming additional participants since then. Current participants are NSI Registrar, Melbourne IT, CORE, Domain Bank, Sarah Deutsch, Richard Kroon, Mark Kosters, and Jonathan Whitehead, with Rebecca Nesson providing coordination.

We hope the group will come up with suggestions on the technical/operational issues raised by the requirements in the agreements. When and if it does, I would expect it to write up its suggestions for further consideration by the procedures and in the venues that are appropriate based on the nature of the group's suggestions, and for the suggestions to be disseminated to the registrars and posted on the web site.

It's debatable just how informal this group is. The only other known reference to it is a message from Michael Palage -- a ubiquitous advocate of intellectual property concerns in ICANN's activities -- to the DNSO's registrars' mailing list. Palage described it as a "Whois Task Force" with "participants from many other constituencies," which seems a bit tendentious, given that Porteneuve had never heard of it or its activities. But, contra Touton, its title and formal status aren't really the point. Instead, its shadowy existence is a testament to ICANN's opacity: it is internally originated astroturf convened at the behest of ICANN's staff under a vague board directive, unknown even to the DNSO's secretariat, and with a scope so broad that its recommendations will be sorted on an ad hoc basis into "policy" or "technical" procedures and channels. In this regard, it's significant that Palage was privy to it early on: intellectual property zealots have long regarded unfettered access to registry databases as an essential component -- both as a means and as an end -- in subordinating DNS in toto to a regime dominated by their largely imaginary "rights."

Sat Oct 21 10:12:45 EDT 2000


From: On Behalf Of
Sent: Friday, October 20, 2000 3:03 PM
Subject: (INTA) A Whole New Can of Snakes

I'm wondering if anyone else has yet run into/dealt with
this problem:

Cybersquatters and pornographers have apparently come
up with a whole new way of avoiding ACPA and UDRP
problems by making use of "superdomains" (a term I use
for lack of a better one to refer to parts of a domain
expressed before, rather than after, the actual domain
name; i.e.,, where "" is the actual
domain and "abc" is just the identity of a registered user
on the site).  We recently discovered one such
registered user offering to sell his "identity", which
consists of an exact match of our mark; and several others
using identical matches of our marks in a "superdomain"
way to operate pornography sites on domains owned by
phony entities at phony overseas addresses.  There's no
way even to discover the identity of these registered users
short of filing John Doe lawsuits and issuing subpoenas for
the domain owner's records (assuming you can actually
find the domain owner, and assuming, if they're not in the
U.S., that their country's laws will even honor the
subpoena).  To the best of my knowledge, none of a
trademark owner's current remedies speak to this issue of

The simplicity of this scheme provides fertile ground for
problems of nightmare proportions.  Imagine trademarks
being atached in front of every commercial domain
imaginable with foreign or phony domain owners, and you
have a recipe for total chaos: months, if not years, and
tens of thousands of dollars being spent to deal with every
single infringer with many possibly never being resolved,
during all of which your trademarks are being used in the
most heinous and unfair ways while you stand powerless
at the sidelines of a court system whose dockets are being
choked to death.

If I were Al Gore, I don't think I'd be taking credit for
inventing the Internet too much longer.

Judy Henslee
Trademark Manager
Harley-Davidson Motor Company


Thu Oct 19 02:58:51 EDT 2000

Voice over IP, ICANN-style and i-TAB have ganged up to submit a proposal for ".tel" TLD, which they describe as "a directory service that will translate existing legacy telephone numbers into Internet addresses." Basically, they hope to map E.164 numbers -- phone numbers, or in ITU geek-speak, "recommendations for telecommunications numbering, including ISDN, BISDN, and SMDS" up to 15 digits long -- onto DNS. The proposal is typically US-centric: its example is a telephone number "complete" with a leading 1, but it fails to say whether the 1 is the US country code or the NANPA long-distance dialing code. Worse, their scheme is inverted with dots running amok: the roving_reporter's phone number 1.212.665.0120 would become Blecch! This system sounds like the kind of service a cop would use to direct you to a holding pen for drinking and driving.

This reversal illustrates a quirky aspect of DNS that the roving_reporter thinks has played a huge if rarely noted role in fueling the DNS wars: unlike most other directory services, whose taxonomy reads left-to-right from general to specific (e.g., newsgroups [alt.sysadmin.recovery], telephone numbers, card catalogs, etc.), DNS reads from specific to general -- -- and thereby violates millennia of cultural codification. Had the net standardized on the UK's more sensible JANET left-to-right model of encoding domains, the use of hostnames to elaborate the namespace would have been far more intuitive, and the DNS wars, perhaps, much more civil. Alas, not. Rather than smoothly elaborating the DNS namespace, we're faced with the potentially destabilizing 'trauma' -- at least, in ICANN's view -- of expanding it in sudden jolts and frenzies. That's just a PITA. More to the point, and much worse, as various communications services converge in TCP/IP networks, we're presented with the immense problem of integrating traditional left-to-right-reading systems such as E.164 into the counterintuitive right-to-left construction of DNS -- "complete" with its intellectual property ("IP") mayhem. Quick: recite your phone number backwards. OK, now multiply that exercise -- "complete" with exponential errors -- by 1.2 billion; repeat dozens of times daily.

It's in this context that ICANN's zealous pursuit of intellectual property claims is beginning to reveal its full force: ICANN's purview is limited thus far to DNS, sure, but DNS is beginning to define the logic of convergence. ICANN's myopic and context-insensitive demand that would-be registries specify what "measures will be taken to discourage registration of domain names that infringe intellectual property rights" was based on the pathetic trajectory of ".com" -- but that pathetic trajectory is now being extended into the realm of telephony, with other realms sure to follow soon. Thus we see Nokia's inane proposal that registrants would have to get approval from a trademark agent before assigning a hostname to their phones. And now the pulver/i-TAB proposal blithely suggests that E.164 numbers -- that is, in their own words, "over 1.2 billion legacy telephone numbers in the world today" -- "are being viewed as Intellectual property and/or trademarks of the subscriber who maintains 'day-to-day' control over the services for an E.164 number." Wunderbar. Thanks to ICANN, a couple of companies that no one has ever heard of will happily dispense over 1.2 billion new "trademarks." Welcome to the lunatic world of ICANN's "technical coordination."

Thanks to Judith Oppenheimer, publisher of ICB Toll Free News, for the heads-up.

Wed Oct 18 01:28:41 EDT 2000

Give 'em an inch: Nokia, hostnames, and "intellectual property"

One of the more curious aspects of the volatile mix of DNS and intellectual property claims is the fact that the sound and fury stops abruptly at the dot that marks the gateway to the LAN. Intellectual property lobbies have fought tooth and nail to translate their constituents' claims into a de facto right to cognate second-level domains; but hostnames, occasionally called "third-level domains" or "sub-domains," have remained free of such encumbrances. But, to lift a line from Jacques Lacan, the fun is over.

ICANN's "Criteria for Assessing TLD Proposals" required would-be registries of new TLDs to specify "Appropriate protections of rights of others in connection with the operation of the TLD." In keeping with ICANN's tireless and disingenuous insistence that it's merely a "technical coordination" body, this specification was relegated to a lowly eighth out of nine criteria -- but no one with two CAT5 cable to rub together believed for a tick that it was really a penultimate priority. And with good reason did they not: aside from occasional fund-plundering forays into other arenas, the bulk of ICANN's activities to date have focused on entrenching and propagating what John Gilmore rightly derided as "the congenital confusion between trademarks and domain names." Not surprisingly, every application that ICANN has published so far, with one exception that will surely be rejected, has gone to great pains to "respect" intellectual property claims.

But one application takes a giant step forward, and a dozen steps back, by volunteering to subject even hostnames to intellectual property claims. Nokia's proposal (for .mas/.max/.mid/.mis/.mobi/.mobile/.now/.own -- what! no .mob?!) distinguishes between "two different types of domain name registrations: the registration of second-level domain names by the registrars and the registration of sub-domain names by the users of mobile devices and services," then adds, "In both cases, the system will discourage registration of domain names that infringe intellectual property rights..." Specifically, it stipulates that "the registrar is required to file an affidavit with the Registry from a qualified trademark agent or a corresponding legal practitioner to the effect that an international trademark search has been made in respect of the domain name and that the search results fulfil the following criteria":

(i) no trademarks registered for goods or services were found that would be confusingly similar to the goods or services of the registrar, and (ii) the domain name does not conflict with any registration of a trademark that can on the basis of the search results or on the basis of common knowledge be assumed to be a well known trademark in the sense of Article 6bis of the Paris Convention.

Note well: Unlike the existing process, in which one is presumed innocent until "proven" guilty (increasingly, by some blinkered ideologue working for WIPO), under Nokia's proposal, the burden of proof falls on the registrant to demonstrate in advance of registration that a hostname is internationally free and clear of potential challenge. Oh, and make sure to budget the costs of those intellectual-property searches into the cost of registering anything at all. Just to be clear: in order to "name" your mobile phone, you'd need to subject yourself to an international intellectual-property search to guarantee that you weren't "infringing" on someone else's "property."

If ever you wondered why the roving_reporter devotes so much energy to bedeviling ICANN, well, there you go. We saw this turn of events coming three years ago when we wrote this essay.

And the fun has only just begun.

Tue Oct 17 00:28:01 EDT 2000

Get offa my cloud

WIPO, the World Irony Protection Organization, has issued like a ruling that Dan Parisi registered the domain name in bad faith, and on that basis ordered the domain transferred to pesky pop-star Madonna -- the tacit implication being that her registration is in good faith.

Tue Oct 17 00:20:58 EDT 2000

Press notes

Damien Cave's coverage of ICANN continues to improve: the man who only recently penned a screed in which he slagged the organization's critics as "paranoiacs" has published a solid profile of North American MALer-elect Karl Auerbach. Unfortunately, the demon that fleetingly possessed Mr. Cave seems to have found a new abode in the unfortunate Ben Charny of ZDNet, whose profile of European MALer-elect Andy Mueller-Maguhn reads like a fragment of a rough draft from Ed Sanders's The Family.

Tue Oct 17 00:20:49 EDT 2000

Toutonic thunder

The roving_reporter sat on the story of Regland's travails in the face of a stormy Louis Touton, and now The Register's gone and written it up. But The Reg missed a couple of key points -- for example, why, as is claimed, was Louis Touton insisting to Regland that they change their marketing language from "reserve a domain" to "pre-register a domain"? Like, didn't the Names Council just issue a warning that "Pre-Registration of Speculative New Domain Names Is Premature"? And here he is insisting on it? Go figger. But, really, why would someone with such august titulature -- Vice-President, Secretary, and General Counsel for ICANN -- concern himself with a matter as trivial as a sub-registrar which he himself derided as, we hear, "a scam" that's "no more than a scheme to take $20 from as many people as they can." And what's with offering his "personal opinions" so forcefully in these matters? Tsk tsk...

Sun Oct 15 18:13:06 EDT 2000

Louis Touton, artless dodger

Though long, the following exchange of emails between Paul Garrin of and Louis Touton, ICANN's Vice-President, Secretary, and General Counsel, is instructive -- and, in the roving_reporter's experience, all too typical of ICANN. Garrin asked excellent questions, and Touton didn't answer them. His message seems clear enough: If you want a shot at a TLD, shut up and pony up.

From: Paul Garrin 
Subject: Name.Space Answers ICANN Ultimatum
Date: Fri, 06 Oct 2000 17:09:10 -0400
Sender:, inc.
11 east 4th street, new york, ny 10003 usa  212.677.4080 fax  677.3603   

To:    Louis Touton
       Vice President, ICANN
       4676 Admirality Way Suite 330
       Marina Del Rey, California 90292-6601
       310.823.9358  fax 823.8649

Dear Louis Touton,

 Thank you for your email regarding the Name.Space application to ICANN's TLD
 registry review.

 Name.Space has every intention to comply with your request and to participate
 in the ICANN review process in good faith.
 The purpose of the disagreement over the non-refundable $50,000.00 fee was to
 focus on issues pertaining to that fee which Name.Space believes ICANN has
 neglected to articulate.  Those issues are:

       1)      How was the amount of the fee determined?
       2)      What oversight was there over determining that amount?
       3)      What body provided oversight over the fairness of the fee?
       4)      If a proposal is not accepted in this round will there
               be further rounds of TLD registry review and approval?

       5)      If there are to be more rounds of TLD registry review,
               when will that be?
       6)      If a proposal is not accepted in this round and there
               are future rounds, will a balance left over from the
               costs of reviewing a proposal be carried over and              
               applied to the next round?  
       7)      Is it ICANN's intention to restrict the number of TLDs         
               or does ICANN intend to expand the number of TLDs?          
       8)      What does ICANN consider its concept of range of expansion
               if the answer to the above is "expand" the number of TLDs?
       9)      What timeline would be descriptive for reaching any limits
               on expansion, if ICANN seeks to impose limits on the number
               of TLDs?
   10)         What is ICANN's perception on the number of TLDs it will
               approve in this first round?

 Our clients and investors would like to know the answers to these questions,
 as I am certain the public and the Congress would like to know the answers as
 A sum of $50,000.00 is not insignificant to small businesses and their
 investors.  While we raised the funds to apply for ICANN review, many        
 potential sponsors could not justify the cost or the risks involved given the
 unclear positions that the above questions seek to clarify.  The prevailing
 opinion of potential sponsors who declined to fund the ICANN review process  
 believed that $50,000.00 is best spent paying salaries at Name.Space rather
 than funding an uncertain agenda of ICANN, especially when all indications
 point to the possibility that ICANN seeks to restrict rather than expand the
 number of TLDs. Your honest answers to the above may help to clarify the
 validity of the $50,000.00 fee and the "no refund" policy as well as to
 articulate ICANNís position on whether it intends to restrict the number of
 TLDs or to expand them.
Paul Garrin
Name.Space, Inc.

- - - - - - - - - - - - - - - - - - - - - 
Date: Thu, 05 Oct 2000 10:46:08 -0700
From: Louis Touton 
Subject: Name.Space's Unsponsored TLD Submission
To:  Paul Garrin
ICANN received Name.Space, Inc.'s TLD application for an unsponsored
top-level domain.  The last paragraph of item B6 of the Unsponsored TLD
Application Transmittal Form was crossed out and the words "Do Not
Agree" written over the paragraph.

The New TLD Application Instructions posted at state that
one of the elements of a complete application is "[a] completed and
signed Unsponsored TLD Application Transmittal Form." (item I6.1)

Because the last paragraph of item B6. was crossed out, Name.Space,
Inc.'s application is incomplete.  ICANN is unwilling to consider the
application on the basis of Name.Space's proposed changes to the terms
of the transmittal form.

ICANN would like to offer Name.Space, Inc. an opportunity to correct
this deficiency.  Please fax a completed and signed Unsponsored TLD
Application Transmittal Form (without any changes or markings to its
terms) to ICANN by 5:00 p.m. Pacific Time on Friday, October 6, 2000 and
send the original of the completed and signed form to ICANN at its
offices in Marina del Rey, CA by overnight courier for delivery no later
than Saturday, October 7, 2000.

If ICANN does not receive a completed and signed Unsponsored TLD
Application Transmittal Form as described in the preceding paragraph,
Name.Space, Inc.'s application will not be considered complete and ICANN
will return the application, along with the application fee, to
Name.Space, Inc.

Please note that Name.Space, Inc.'s application will receive no further
review unless and until ICANN receives a completed, signed, and
unaltered Unsponsored TLD Application Transmittal Form as stated above.
Accordingly, ICANN has not determined in what other ways, if any,
Name.Space, Inc.'s application is incomplete.

Thank you for your attention to this matter.

Best regards,

Louis Touton
ICANN Vice President

The above material is Copyright © 2000 by t. byfield.

The r_r began as a semi-collaborative nym on the <nettime> list, where it worked well; but the pseudonym precluded comments, and there was more to report than was good for the list, so now it -- or a mutation of it -- has resurfaced on TBTF. [ top]


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