[wordup] John Gilmore: "It's time for ICANN to go"

[Adam Shand]

Via: politech at politechbot.com
From: http://www.salon.com/tech/feature/2002/07/02/gilmore/index.html

It's time for ICANN to go
John Gilmore, original "cypherpunk" and all-around Internet supergeek, explains why the organization that runs the Internet is broken.

By Damien Cave

July 2, 2002  |  John Gilmore has spent 30 years shaping Internet
culture and politics. An early employee of Sun Microsystems and a
co-founder of free software pioneer Cygnus Software (now part of Red
Hat), he has worked tirelessly to promote his civil-libertarian views on
how cyberspace should evolve. Entities as diverse as the Electronic
Frontier Foundation, the "cypherpunks" and Usenet's wacky and subversive
"alt" newsgroups can all trace their roots to Gilmore's efforts -- and,
quite often, his funding.

Gilmore has never been afraid to speak his mind on any issue, but the
politics of Internet governance are particularly close to his heart. And
right now, that means keeping a close eye on ICANN, the Internet
Corporation for Assigned Names and Numbers. ICANN is the international
body in charge of managing the Internet's domain name system -- the
numbers and names that identify Internet addresses.

Critics from across the political spectrum have claimed for years that
ICANN is secretive, slow, inefficient and, worst of all, firmly in the
pocket of special interests. But in recent weeks, the rhetoric has gone
up a notch. Suddenly, ICANN is at a crossroads.

Defenders of the organization, including former chair Esther Dyson, have
long argued that ICANN simply needs time to grow, develop and earn
Internet users' respect. But four years after it was first created,
ICANN is more unpopular than ever. ICANN's decision in March to abandon
a system of at-large elections that resulted in ICANN dissidents being
elected to the board of directors may have been the last straw. Now many
observers have given up on reform -- they want the organization shut
down entirely. The Senate even convened a hearing during the week of
June 12 to discuss ICANN's problems and later announced that it would
step up oversight of the body.

ICANN isn't accepting the criticism quietly. On June 20, the
organization, not known for its openness, published a report justifying
its own existence. And it is continuing to deny publicly elected ICANN
director Karl Auerbach the right to inspect ICANN's books.

Via e-mail, Salon talked with Gilmore, who, along with EFF, is currently
helping to fund a lawsuit filed by Karl Auerbach against ICANN,
demanding that the organization open its books to him.

In March, you took your complaints about ICANN to a new level, writing a
letter to Vint Cerf, a member of ICANN's board of directors and seminal
figure in the history of the Internet. You criticized him and ICANN in
very strong terms. Why?

I had already been biting my tongue for a year, trying to figure out how
to say what I needed to say without losing a friend. When he was quoted
defending ICANN's withholding of basic information from a duly elected
member of the board of directors, I realized that there was no future
for that friendship, so I might as well go ahead and say what I had been
withholding.

I had some hope that in response he would actually tell me why he was
doing these terrible things. Like, that maybe someone had threatened his
relatives if he didn't play along. I hoped that it would touch him
somehow, spark his conscience.

Have you heard from Cerf since sending the letter? What's been his
response?

He hasn't said boo to me, hasn't called, hasn't sent e-mail. That isn't
a big surprise. It's not like our kids grew up together or anything. We
worked together on the Internet Society (ISOC) board for a few years,
and got to know each other. We swapped e-mails a few times a year after
I left ISOC.

But he took the private e-mail that I had sent to him, as a friend, and
filed it in the court case, making it a public document. I had not
wanted to take him to task publicly, preferring to focus my public
comments on the issues rather than on his personal ethics. But he
published it.

And he published it in an attempt to discredit the lawsuit, by claiming
that the people behind the suit were just trying to tear down ICANN. No,
we're trying to make ICANN accountable to its public for its actions.
That isn't treason, it's a basic principle of governance. If ICANN is
abusing its power, then the public, not me, should tear it down and
rebuild it better.

By casting Karl and me as destroyers, Vint seems to be assuming that if
a dissident board member actually gets access to the records of what
ICANN is doing, that board member will be sufficiently horrified that he
will publish it as a whistleblower. And that once the public finds out
what ICANN has been doing, it will be torn down. If ICANN's internal
dealings were lily-white, then Vint would have no need to keep them away
from the public. If there were no secrets that a board member couldn't
be trusted with, then ICANN wouldn't have spent two years stalling Karl
and trying to get him to sign nondisclosure. What do Vint and Stuart
Lynn know that we, the public, and our elected representative, Karl
Auerbach, haven't been allowed to know?

Some people argue that critics are demanding too much. ICANN is new,
they say, underfunded and international in nature and thus can't be both
completely open and quick and efficient.

This is not an issue of trading off closed doors for quickness or
efficiency. There is not a credible claim that ICANN has been either
quick or efficient.

The root of the problem, I believe, was ICANN's original "volunteer"
lawyer, Joe Sims. He wrote the bylaws of ICANN and structured it so that
it would be, as completely as possible, unaccountable to anybody. I was
involved in these discussions while Jon Postel [the person responsible
for assigning numerical Internet addresses for much of the Internet's
existence] was alive; we were all afraid that any small organization set
up to end the NSI [Network Solutions] monopoly [on domain names] would
be sued out of existence by NSI. We didn't want NSI to succeed at that.

But there's a difference between accountability and transparency -- and
a difference between being immune from suit by a subcontractor, and a
trustee of a global resource being immune from scrutiny by the users of
that resource. EFF's comments on the initial draft NSI charter and
bylaws said, "There's no transparency, no accountability, and no
protection of civil rights," and we made specific wording suggestions as
to how they could fix that. They ignored those comments, and formed
ICANN anyway. The culture of secrecy and unaccountability has festered
in there ever since. They hold "open public meetings" where the public
is free to shovel its comments into a dumpster. But then they ignore the
comments and do what they want in closed-door meetings.

You spent two years working on domain name issues at CORE, a
not-for-profit domain registry, and you've argued that even then,
corporate interests trumped technical needs. In your letter, you also
mention people "pulling strings" behind the scenes. Who would these
people be? Do you have any theories?

The strings that were pulled before and during the Clinton
administration's "Green Paper" and "White Paper" process, that
ultimately resulted in the creation of NewCo, also known as ICANN, were
pulled by SAIC. SAIC is a very interesting for-profit company with a
multibillion-dollar annual revenue, most of which comes from classified
contracts with the U.S. military. What's even more interesting about
SAIC is that there is no external control on it: It is "employee-owned,"
i.e., there are no outside stockholders. If you leave the company, you
have to sell your shares in it. SAIC's board of directors reads like a
who's who of the military-industrial complex (former secretaries of
defense, spy-agency heads, etc.). When you read about the government
wasting billions on "homeland security," guess who gets it. SAIC's home
page features their new brochure on "SAIC -- Securing the Homeland."

Somebody at SAIC noticed that a tiny company had gotten the temporary
monopoly to run the domain name system, and was being paid a few million
dollars by the government, over a few years, to do all the work. In
March 1995, SAIC acquired this company (Network Solutions) for $3
million, from its founder, who had won the bid because his five- or
10-person company was "minority owned." (He later complained bitterly
that they'd screwed him.)

Within the next six months, somebody inside the U.S. government suddenly
decided that Network Solutions (the new SAIC subsidiary) could charge
every domain name holder $50 per year, extracting hundreds of millions
of dollars from Internet users. That policy was instituted despite the
best efforts of the Internet community to stop it. That's one string
that was pulled. Who exactly pulled it? Sounds like a job for an
investigative reporter.

I helped to design and build the infrastructure for CORE to become a
domain name registry. It cost us less than 25 cents per year per name to
run. Even if you added the likely legal bills from NSI suing us, it
amounted to less than $2 per year for each domain name. NSI is still
charging $6 per year, and doing it in much higher volumes, where it
should actually cost them less than 1 cent per year to do the work.

NSI, wholly owned by SAIC, then filed for a public offering. You can
read their prospectus. It said, effectively, SAIC is going to keep 90
percent of the shares, and SAIC's shares each get 10 votes compared to
the shares we'll sell to the public. They sold off 10 percent of the
company for $54 million, during the early part of the Internet stock
craze. That 10 percent owned by the public had only 1 percent of the
voting power, i.e., even though it was a "public company," SAIC could do
exactly what it wanted with the company, whether it was in the
stockholders' interest or not. Indeed, the prospectus was blatant enough
to say that it would immediately transfer significant money (I think it
was $20 million) to its parent company, SAIC, from the proceeds of going
public!

The next challenge was maintaining the SAIC monopoly on selling domain
names. Clearly when you're selling something for more than 50 times its
cost, you need a way to keep out competitors, or the price will drop.
The NSI contract with the government was coming up for renewal, and
since it had only been a small contract, it had been competitively bid
for a fixed period, and was intended to be competitively rebid after
that period. Also, lots of angry people were complaining about how
rotten the NSI domain name registration policies and prices were. There
were two challenges: keeping the government contract despite high prices
and lousy service; and preventing other top-level domains from offering
reasonable prices and good service. This is where the second string was
pulled.

Clinton's White House delegated the job of sorting out this mess to Ira
Magaziner. He held meetings with all the stakeholders, generally telling
each of them what it wanted to hear, in order to extract more
information and cooperation from each one. I also talked to all the
stakeholders, and it was clear that the general consensus favored
competition and sane policies, though you sometimes had to cut through a
thick fog of private interests pulling for their own advantage.

But somehow in the actual government decisions, what always ended up
happening was that NSI would keep its monopoly. The rationale was
"stability of the Internet" (a hoax, since hundreds or thousands of
people in addition to NSI were capable of doing the technical work
involved), "avoiding trademark squatting" (NSI had already set its
domain-dispute policy to "anybody with a trademark trumps anybody
without one," so they were working in league with the trademark lobby)
or "preventing chaos" (another word for competition). Somehow that
statesmanlike guy Ira Magaziner managed to screw the public, screw
competition and reward the billionaire spook contractor who had the
monopoly contract.

But this isn't the end of the story. SAIC was particularly smart. They
knew the monopoly wouldn't last forever, so they milked it and then got
rid of it to a sucker. They dribbled out more NSI stock into the market
as the stock price rebounded after the monopoly was secured. Then in
March 2000, they sold the entire company to VeriSign for $21 billion in
stock (yes, that's billion). SAIC almost certainly had enough sense to
sell off at least a good chunk of this stock before it dropped through
the floor. (Try reading SAIC's SEC reports for 2000 and early 2001,
maybe you can tell.) Thus SAIC made billions of dollars out of spending
$3 million and pulling a few strings to keep the monopoly alive.

There were other strings pulled at other times (e.g., when Vint Cerf had
just joined the ICANN board, the board voted to convert NSI's short-term
contract to run the "com" [top level domain name] into a permanent
contract), but those first two SAIC tugs were the key ones.

Did you do anything to try to stop the process? Did it work?

Well, CORE was an attempt to stop the process, by creating a genuinely
disinterested body that would provide domain names at cost, and a global
network of hundreds of retail outlets who would compete on price and
quality of service. No, it didn't work; Ira Magaziner derailed it so NSI
could keep the monopoly.

Why hasn't Auerbach been able to turn ICANN around?

I'm not privy to what goes on in ICANN board meetings. But steering any
organization from the board level, particularly if the board has divided
opinions, is very hard. The only real power a board has is to fire the
CEO. The rest of its power is exercised by advising the CEO (if he or
she will listen). It's a delicate relationship, and it's very disruptive
to the organization when it breaks. If the CEO is unresponsive to
guidance from the board, and the board is divided and thus can't fire
the CEO, then the whole organization goes dysfunctional.

I've also been on boards that were merely too big to make good
decisions. By the time everyone has had their say on an issue, two hours
have gone by and you still haven't made a decision, yet you have a dozen
issues to resolve in the meeting. To make any decisions possible in a
big board, most board members have to sit back and not participate,
except in issues where they have personal knowledge or serious interest.
Such boards can't resolve hard issues, unless the members will defer to
wise leadership (if it's available).

When a board is loaded with yes men who'll support management whether
they're right or wrong, it's tough for dissenting board members to do
anything to prick the conscience of the organization. Their best role
may be in being information conduits and whistleblowers to outside
stakeholders. If the board is so snowed by the staff that it lets the
staff get away with murder (like not revealing the books) then there
isn't even much information for a dissenter to convey.

Your question is like asking how one honest person could have turned
around the Nixon White House. There was one such person, who kept
calling reporters in the middle of the night to blow the whistle. She
was Martha Mitchell, wife of the attorney general. She didn't turn it
around. "Deep Throat" didn't either -- but at least Deep Throat brought
it down, so it could be replaced. Of course, the U.S. had the benefit of
elections, to pick Nixon's successors. ICANN has abolished those.

What do you hope to achieve by helping to bankroll Karl Auerbach's suit
against ICANN?

I hope to force ICANN to actually be accountable to its directors for
its actions. I sit on half a dozen boards of directors today, and have
been on more than a dozen through my life. I have never been on the
board of an organization that tried to deny me access to its financial
information -- never. ICANN has done exactly this to Karl and other
directors.

I believe it's because there is information in there about how ICANN has
misused its money, and/or has favored people who lent or gave it money.
For example, how much has Jones, Day (ICANN's lawyers, primarily Joe
Sims) been paid by ICANN?

ICANN will tell you that they only want a veto over whether Karl can see
or copy or publish "certain" information. The catch is that the ICANN
staff works for the board of directors, not the other way around. They
are trying to tell their boss what he can see and what he can do. It
seemed a bit uppity to me, particularly when the nonprofit in question
happens to run the global monopoly on domain names.

Not only are they wrong under California law, but they are wrong as a
matter of public policy. The only way the public can affect what the
otherwise secretive and unaccountable ICANN staff does is by electing
directors who are responsive to the public. If the unelected ICANN staff
can thwart those directors, it can thwart the public will, despite free
elections of directors (which they have also abolished).

What about broader solutions? Esther Dyson, writing in the Wall Street
Journal, suggested that the organization needs more money and staff. Do
you think this would help or hurt the organization? Why or why not?

Again, I can't peer into a secretive organization. If not even board
members can see where the money goes, how could I tell whether they have
raised or spent too much or too little?

The Department of Commerce promised several years ago to withdraw
completely from Internet governance, but then ended up maintaining what
it called "policy authority." Now the Senate is threatening to curtail
ICANN's powers. What do you think the international reaction is to the
U.S. government asserting control over Internet governance?

I'm no expert on the international reaction; ask some international
people.

I think the international reaction on U.S. Internet dominance is a lot
like the international reaction to many U.S. topics: They wish the U.S.
didn't try to treat the world as the U.S.'s own private playground, but
then again it's not wise to piss off the world's only superpower. So
they demur politely while fuming privately. You will note that only two
country-code domain registries have signed the ICANN agreement, and at
least one of those (Australia) was done with full arm-twisting applied,
by ripping the domain away from the person who had actually created the
.AU domain and run it for 20 years, to a pliable company who would sign
the contract in return for the local monopoly.

Some in Congress have suggested that the U.S. Department of Commerce
take over running the domain name system. What do you make of this
proposition?

I objected to the U.S. government retaining any control over the DNS, at
the time. But at least the government does have to follow the Freedom of
Information Act; the citizens have a right to see what the government is
doing. And it doesn't have the power to suppress speech, as ICANN can do
by taking away the names of people's publications.

For U.S. citizens, this would be preferable to ICANN. But for the rest
of the world, U.S. government control would not be a good thing. That's
one scenario in which a credible alternative root zone could emerge: The
rest of the world could decide that the real root zone is not the one
that the U.S. government controls, but some other one that they would
set up.

Do you think it's feasible to set up alternative-root name servers?

Alternative roots would need to have a credible governance structure, or
they just become "meet the new boss, same as the old boss" power
structures. None of the people who had set them up a few years ago were
credible to me; they were just squatters hoping to have landed on a gold
mine.

Are you familiar with Milton Mueller's account of Internet governance,
which portrays ICANN primarily as a tool for trademark protection. Would
you agree with that assessment?

I haven't read Mr. Mueller's account. However, I do agree that ICANN and
domain name policy has been perverted from the start by the machinations
of trademark interests. Actual trademark law gives zero power to cancel
or seize domain names, prevent their issuance, etc. Actual trademark law
lets hundreds of people use the same name, both in different
jurisdictions, and for different kinds of trades (e.g., computers vs.
soap vs. ships). Trademark owners only have power over others when the
others misrepresent themselves as the trademark owner.

But the trademark "maximalists" distorted both the WHOIS issues and the
Uniform Dispute Resolution issues at ICANN. After the trademark lobby
got only 70 percent of what they wanted from ICANN (after massive public
protest stopped the other 30 percent), they then lobbied the U.S.
Congress, which passed a terrible "trademarks trump domain names anyway"
law. It specifies that jurisdiction for all domain disputes is in
Virginia (where Network Solutions was located) and thus conveniently
located where U.S. law applies, rather than the policies carefully
hammered out internationally. There are still lawsuits in process over
this; one I think involves a Swede and a Canadian who both have the same
trademark and are trying to snatch the domain name from each other.

How would you like to see ICANN organized and run? What's your vision
for the organization?

Regarding domain names, the policy that would actually satisfy the
public interest would be to have thousands of top-level domains, in
which anyone could register a name. The whole monopoly problem arose
because everyone wanted a name in ".com"; ditto for the squatting
problem and the trademark problem and the price problem. If squatters
had registered your favorite name or your trademark in a thousand TLDs
[top level domain names], just use it in one of the other thousands of
TLDs. This would let every trademark holder register their name as a
second level domain; if Sun Microsystems got sun.com, Sun Oil could have
sun.oil and Sun Photo could have sun.pix or sun.photo or sun.camera or
sun.inc or any other one they wanted. You couldn't use the DNS as a
White Pages directory, but you can't do that now anyway. If the guy who
registers names in .oil wants too much for the domain, get sun.oilco or
sun.gas or sun.petrol or petrol.sun instead.

How to get to that solution is the problem. Benevolent dictatorship by
Jon Postel would have gotten us there, but Jon was unwilling to stand up
to pressure from the White House. Ira Magaziner threatened him ("You'll
never work on the Internet again") and he didn't have the spine to tell
Ira to take a flying leap. But Jon's initial design would have expanded
to dozens of TLDs long before ICANN, and increased them by 50 or 100 a
year until demand slacked off.

Do you think this will ever happen? What will ICANN's fate ultimately
be?

If we are lucky, the current ICANN will be scrapped as a failed
experiment. Its assets and powers will be handed on to some new
experiment, hopefully with transparency, openness, accountability and
respect for human rights built in deeply, not only in its corporate
structure but in the people who we elect and hire to run it.

--
About the writer
Damien Cave is a senior writer for Salon.