||Tue Nov 16 12:26:57 EST 1999
Just five years ago WiReD ran an article about a certain
domain, "mdconalds.com," and how a certain McDonald's
Corp. had never even heard of it. It quoted the InterNIC's
supervisor of registrations -- that is, of a 2.5-person department
-- as saying, "The problem with the Internet is, who's in
charge? When we figure that out, there will be a meeting."
After rather more than one meeting later, someone's finally in
charge. You're probably thinking "ICANN." Maybe. But my
nose tells me the answer might be more like "Jones Day Reavis
JDRP is a 1200-strong multinational law firm
Among its partners are Joe Sims
and Louis Touton
These two lawyers, more than anyone else -- more than Ira Magaziner,
more than the former Jon Postel, more than ICANN's
"initial" and "interim" board members -- have
defined the course that has led from the final days of Postel's IANA
to the tortured dissolution of NSI's monopoly to the structuring of
ICANN and, most recently, to ICANN's "Uniform Dispute
Sims, a Washington D.C.-based antitrust lawyer, entered the stage
as a pro bono lawyer for Jon Postel and/or his Internet Assigned
Numbers Authority (IANA)
He acted in this
capacity through the release of the Green Paper on 23 March 1998
the release of the White Paper on June 5
and Postel's death on 16 October. After Postel's death, he became
pro bono counsel for IANA's parent organization, USC's Information
Sciences Institute (ISI) "on behalf of the 'IANA
In these roles, he was uniquely positioned to draw up the founding
documents for a White Paper-stipulated "newco,"
to tap self-confessed naifs like Esther Dyson for its board
and, when his creature ICANN was chosen by the U.S. government, to
serve as its chief counsel.
ICANN's polite critics have called it a "lousy
governance model" with a "byzantine" structure
"hopelessly complex" and "insulated from
accountability by [its] organizational shells" (Tony
-- see his organizational chart
"unsuable" (Einar Stefferud)
In other words, Sims -- a very successful antitrust lawyer -- seems
to have done a superb job of designing ICANN.
Evidently, though, his initial handiwork still needed to be
broken in a bit. Critics have accused ICANN of violating its by-laws
again and again
These critics aren't exactly disgruntled malcontents, either: at
ICANN's recent board meeting in L.A.
the U.S. Small Business Administration (SBA) hand-delivered to the
board members (and read aloud in full in a comment period) an
aggressively critical letter charging, among other things, that
"procedural questions have arisen at almost every stage of
One thread is particularly prominent among these irregularities:
ICANN's steadfast refusal to grant effective representation to
independent domain holders so as to counterbalance -- as stipulated
by the White Paper -- the representation of intellectual-property
advocates. Recounting this history would be a painfully long and
complex (think "byzantine") task, but consider the
After Network Solutions decided in September 1995 to charge $100
per registration, Postel proposed to the Internet Society to add, in
one fell swoop, 150 new global top-level domains ("gTLDs"
like .com, as opposed to country-code TLDs [ccTLDs] like .uk), and
to add 30 more in each subsequent year
Four years later, ICANN is still spinning its wheels on the idea of
new gTLDs -- which would be a living nightmare for commercial
concerns intent on maintaining what John Gilmore sagely called the
"congenital confusion between trademarks and domain
However, in the year during which ICANN has been run by unelected
-- that is, self-appointed -- "initial" and
"interim" boards, it has managed to steer to passage its
"Uniform Dispute Resolution Policy" (UDRP).
Doing so involved constituting and coordinating "GAC,"
the "independent advisory" Government Advisory Committee
meets behind closed doors and includes representation from WIPO, the
World Intellectual Property Organization -- a U.N. special agency
whose operating budget is 88 percent financed by "fees
generated by... services it renders to the private sector."
(The other seventeeen U.N. special agencies -- for example, UNESCO
[Education, Science, and Culture] don't rate in GAC's book.) It also
involved waiting for, and digesting, WIPO's "Final Report [on
the] Internet Domain Name Process."
It involved synthesizing that report with staggering amounts of
input from other quarters into the UDRP, a contract imposed upon
ICANN-accredited registrars. And, most curiously, it involved doing
this all before the L.A. meeting, where the elected
board member could vote on it.
In an open comment period at the L.A. meeting, there was a very
enlightening exchange on this question between Ellen Rony and Esther
Dyson. Rony asked -- as have many, many others -- why the "interim"
board was in such a rush to pass the UDRP. Dyson, ICANN's Chairman
of the Board, countered that the outcome would have been the same
anyway because "the new board members are in fact more
representative of big moneyed interests than the original [i.e.,
interim] ones." That's not very comforting; nor is the fact
that the quip is absent from ICANN's official "scribe's
but present in the video
Ah, yes, the man responsible for overseeing the UDRP? Louis
Touton, litigator, partner at Jones Day Reavis and Pogue. If some
corporation with a wall of litigators decides that you're
"squatting" on their cyberturf, best of luck to you -- but
you can sleep easy knowing that Touton waived his salary for
arranging the UDRP
But don't worry about him: on 19 October he was appointed ICANN's
Vice-President, Secretary, and General Counsel
My gut tells me that great things are in store for him.
Neither his nor Sims's bio is available on ICANN's site. It seems
strange, since the two men seem to have cast awfully long shadows
over ICANN's awfully short and checkered past. Touton's isn't even
available on JDRP's site.
My own impression, having sat through four numbing days of the
ICANN meeting, is that the ICANN board, with a few possible
exceptions, is neither venal nor corrupt but, rather, clueless: they
spent an inordinate amount of time listening to Sims and
Touton tell them what was happening.
Newly elected board member Amadeu Abril i Abril put it best when he spoke of the lingering problems with the NSI agreements: "I don't like these agreements... This is the best agreement we could have, given the circumstances... What I still wonder is why the circumstances were artificially
He went on to say that he thinks the U.S. government owes us an
explanation of how this whole fiasco came about. I think Sims and
Touton owe it to us. And once the full force of the UDRP become
clear, I think you'll agree.