the roving_reporter no. 1

from TBTF for 1999-11-21

> roving_reporter
t byfield

Tue Nov 16 12:26:57 EST 1999


Just five years ago WiReD ran an article about a certain domain, "," 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." [1] 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 and Pogue."

JDRP is a 1200-strong multinational law firm [2]. Among its partners are Joe Sims [3] and Louis Touton [4]. 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 Resolution Policy." [5]

Joe Sims
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) [6]. He acted in this capacity through the release of the Green Paper on 23 March 1998 [7], the release of the White Paper on June 5 [8], 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 function'" [9]. In these roles, he was uniquely positioned to draw up the founding documents for a White Paper-stipulated "newco," [10] to tap self-confessed naifs like Esther Dyson for its board [11] 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 (Michael Froomkin) [12], "hopelessly complex" and "insulated from accountability by [its] organizational shells" (Tony Rutkowski [13] -- see his organizational chart [14]), and "unsuable" (Einar Stefferud) [15]. 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 [16]. These critics aren't exactly disgruntled malcontents, either: at ICANN's recent board meeting in L.A. [17], 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 ICANN’s activities..." [18]

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 following.

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 [19]. 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 names" [20]. 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 [21] that 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." [22] (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." [22] 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 notes" [23] but present in the video [24].

Louis Touton
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 [25]. But don't worry about him: on 19 October he was appointed ICANN's Vice-President, Secretary, and General Counsel [26]. 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 altered." [27] 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.

The above material is Copyright © 1999 by t. byfield.

The r_r began as a 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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