Subject: GA-DIGEST V1 #1255
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST            Monday, June 3 2002            Volume 01 : Number 1255

----------------------------------------------------------------------

Date: Sun, 02 Jun 2002 10:22:53 -0700
From: Sandy Harris <[email-masked]>
Subject: Re: [ga] Comments on ICANN Reform Recommendations

Kent Crispin wrote:
> 
> On Sun, Jun 02, 2002 at 02:25:13AM -0700, Sandy Harris wrote:
> >
> > I think the bottom line is that ICANN is a "public benefit" corporation.
> > Without a pausible plan to ensure that the public interest is adequately
> > respresented, it loses all legitimacy.
> 
> The legitimacy of a public benefit corporation does not in any way
> whatsoever depend on any form of representation of the public;

I said we need "to ensure that the public interest is adequately
represented". You said we don't need "representation of the public".
The difference is important. Both statements could be simultaneously
true. I'm not yet convinced yours is.

> a
> public benefit corporation is by definition a *private* entity that
> gets a particular tax status.  It has absolutely no obligation under
> the law to involve the public in its management or in any of its
> decision-making processes.
> 
> The way it works, basically, is that the directors and officers decide
> what the corporation does; and the state decides whether those
> activities are worthy of special tax status.  Under normal
> circumstances the state has absolutely nothing else to do with it, and
> neither does the general public.
> 
> That is, public representation is absolutely not necessary for ICANN to
> function as a completely legitimate public benefit corp, just like
> thousands and thousands of other corporations.

What is necessary is that it work in the public interest and, since it
is required by its charter to be "open and transparent", that it be
verifiably clear to all concerned that it is doing so.

The public interest will sometimes conflict with narrower interests. We
need a structure that makes it reasonable to expect the public interest
to win most such fights that may arise within ICANN. 

I think that means that at least half the board must represent the
public 
interest, rather than the narrower interests of the "stakeholder"
constituencies.
    
Directly or indirectly elected by the public? By some ICANN membership
defined so anyone interested can join? By some form of "public interest
group" constituency? All of those pose difficulties; any might work.
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------------------------------

Date: Sun, 02 Jun 2002 09:19:32 -0700
From: [email-masked]
Subject: [ga] right and wrong

Well it is time for your weekly dose of moralism.

In all cultures and religious venues from the beginning of history,
there have been maxims which have transcended development of thought. 
Keeping ones' word and not lying.  Upon these rest reliability and
stability.  Accessibility necessarily flows from these.  There is a
glitch in this theme; "the king can do no wrong".

Where are we now with ICANN?  Certainly it is not about reliability and
stability and accessibility is surely diminished.  Somehow we have
wondered from the keeping of ones' word and have begun that horrible
pathos of lying.
(I do not care what others say I am a member of ICANN and bare great
responsibility for these failings.  I have not kept others from losing
contact with what is right)

Where do we go from here?  Are we correct to feed a beast that has shown
complete hatefullness for societal norms of truth and honor?  Are we
empowered to slay such a beast in the name of right?  If we take a
farmers' crazed oxen because it has trampled a man, we must be obligated
then to till the farmers' field.  Or if we chose to take the farmer then
we must tend to his family. Is Karl right to sue, Is Jamie right to push
a rebid? Who will tend to the field and family if they are successful?

Reform of someone or something is a good idea.  But as any judge
anywhere in the world can tell you, reform cannot come without
repentance.  Our BoD admits no wrong, therefor it cannot repent,
therefor it cannot reform. (if you do not believe me ask Luther) So we
must view ICANNs' reform as excuse and evasion as opposed to honest
reformation.

As to the WLS.  Some would think that such a technical matter is outside
morality, they would be severely wrong. Thou shall not steal, is in as
many cultural concepts as not lying.  The way things are run now it is
obviscated theft, which requires lying and stealing.  It is abhorrent to
reliability, stability and accessibility.

Danny's' reference to communism is innaccurate at first blush, but upon
reflection is correct.  The theory of communism is good, but when evil
people usurp the power of the people it becomes evil.

The road to hell is filled with good intentions.  Perhaps TR has good
intentions.  Blocking the showing of the will of the people leads to
nasty results.  Why does one oppose regular consistent voting on matters
of public interest?  Certainly we all laugh at the juxtaposition and
historical metaphor regarding verification and technical feasibility and
cost regarding voting as what Hitler and so many other hateful fascists
have used to deny a proper popular vote.  Because this is the Internet
it is different?  I think not.

We are soon to be faced with the challenges of globalization.  Only
personalized representation without economic interest will save us from
that cross.

No Cross No Crown.  The internet effects too many lives and too many
realities to pretend that we may operate in a moral vacuum.  My Navajo
friends know how to laugh and cry at the same time when lack of good
results in agony.  Because of course it does.  We reap what we sew.

We must redouble our efforts and rekindle our spirit and work harder and
smarter to provide accessibility, reliability and stability to this
communication device.

Sincerely,
Eric
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------------------------------

Date: Sun, 2 Jun 2002 10:16:54 -0700 (PDT)
From: Karl Auerbach <[email-masked]>
Subject: Re: [ga] Comments on ICANN Reform Recommendations

On Sun, 2 Jun 2002, J-F C. (Jefsey)  Morfin wrote:

> Dear Kent,
> US legalities are of no interest here.

Please don't make the assumption that the writer in question was making
anything that even distantly approximates an accurate statement about the
obligations of a California public-benefit corporation (or US Federal
tax-exempt organization.)

(Although one can have expertise in matters of California law without
having a license to practice, the two often go hand-in-hand.  You can
check someone's credentials to practice law in California by going to
http://www.calsb.org/mm/sbmbrshp.htm )

Thick volumes have been written on these matters.  As a general
proposition public-benefit bodies are not divorced from the public whose
benefit they are formed to serve.

And you will also find that California is not some kind of unique haven
for pseudo public-benefit bodies.  Sure, I'm biased in favor of California
- - I'm a native Californian - but even if I do say so myself, the legal
regime here is based on many of the same notions of corporate forms found
in other states of the US and other nations of the world.

One of my concerns, and one I expressed during the first board "retreat",
was that these ICANN r"evolution" proposals are so radical that they
vitiate the understandings that gave rise to ICANN's California
public-benefit and US Federal tax exempt status and thus could lead to
either an invalidation of those privileged positions or require, at least
in the latter case, approval from the US Internal Revenue Service (IRS) or
a requalification.

		--karl--

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------------------------------

Date: Sun, 02 Jun 2002 12:23:04 -0700
From: [email-masked]
Subject: Re: [ga] Comments on ICANN Reform Recommendations

Karl please correct me if I am wrong but there is an evaluation at the three
year period regarding whether the corporation did what it said when it got
its' public-benefit status re-IRS.

To my knowledge this has not been verified with any report and therefor this
is a major reason for the rats leaving the ship and the r"evolution" process.
Andrews' timing is correct in that he jumps before the tax hounds hit the
boat. How Jones and Day declared their billing will have to be reassessed. You
may be saved by your legal attack.  Certainly the DoC will have to rebid if
this status is not preserved.  IANA functions are nebulous at this point.
Anyone who "donates" money at this point with knowledge would be committing
some type of tax fraud.  I would hate to be a registry taking money from the
public on the basis to give a portion to ICANN.  Fraud again, knowing the
status will not last the year.  Enron execs are on the hot seat because they
knew, Touton will be leaping quickly if he has any brains.

The ugliest part is that the basis for ICANNs' revenue is not donation but fee
for service which no matter what they file will not clear the criteria for
public-benefit.  There are percentage requirements.  The house of cards has
been built upon five aces.
BoD resignations are soon to follow.

Perhaps good, perhaps bad, perhaps just the way it is.

Eric

Karl Auerbach wrote:

>
> One of my concerns, and one I expressed during the first board "retreat",
> was that these ICANN r"evolution" proposals are so radical that they
> vitiate the understandings that gave rise to ICANN's California
> public-benefit and US Federal tax exempt status and thus could lead to
> either an invalidation of those privileged positions or require, at least
> in the latter case, approval from the US Internal Revenue Service (IRS) or
> a requalification.
>
>                 --karl--
>
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------------------------------

Date: Sun, 02 Jun 2002 13:21:54 -0700
From: [email-masked]
Subject: [ga] WLS

The debate over deletions and waiting lists is just like arguing with a
convicted felon over his sentence.

We cannot seriously allow the thieves to define the correction of their
ways.

I am quite concerned that we do not do better in crushing any suggestion
of paying more do-re-me to protect what is our given right.

OTOH our group has never lost a name because our engines can beat their
engines.  We can also bury their engines but we do not as stability is
good for all of us.  OTOH maybe we should just whip these punks into
shape and destroy their functionality, we all know it can be done.
Completely properly and within all the RFCs.

The point is that everyone needs to come to the table on this WLS issue
and come up with solutions and stop acting like some sit in a better
position than others - because all of you are fragile.  I am willing to
mediate such a dispute but no one seems to think this is necessary.  But
this stupidity of righteousness must cease or the people who can really
run this baby will crush the process.

Sincerely,
Eric

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------------------------------

Date: Sun, 02 Jun 2002 16:14:29 -0700
From: Jeff Williams <[email-masked]>
Subject: Re: [ga] Comments on ICANN Reform Recommendations

Kent and all assembly members,

Kent Crispin wrote:

> On Sun, Jun 02, 2002 at 02:25:13AM -0700, Sandy Harris wrote:
> >
> > I think the bottom line is that ICANN is a "public benefit" corporation.
> > Without a pausible plan to ensure that the public interest is adequately
> > respresented, it loses all legitimacy.
>
> The legitimacy of a public benefit corporation does not in any way
> whatsoever depend on any form of representation of the public; a
> public benefit corporation is by definition a *private* entity that
> gets a particular tax status.  It has absolutely no obligation under
> the law to involve the public in its management or in any of its
> decision-making processes.

  Of course this is patently false.  Kent you should not enguage in
legal matters of any kind as you are not well versed in them if you
mske baltent statements such as this one.

>
>
> The way it works, basically, is that the directors and officers decide
> what the corporation does; and the state decides whether those
> activities are worthy of special tax status.  Under normal
> circumstances the state has absolutely nothing else to do with it, and
> neither does the general public.
>
> That is, public representation is absolutely not necessary for ICANN to
> function as a completely legitimate public benefit corp, just like
> thousands and thousands of other corporations.
>
> --
> Kent Crispin                               "Be good, and you will be
> [email-masked]                          lonesome."  -- Mark Twain
>
> --
> This message was passed to you via the [email-masked] list.
> Send mail to [email-masked] to unsubscribe
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Regards,
- --
Jeffrey A. Williams
Spokesman for INEGroup - (Over 124k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [email-masked]
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208

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------------------------------

Date: Sun, 2 Jun 2002 17:18:54 EDT
From: [email-masked]
Subject: [ga] More on current ISOC activities

Subj:    [Discuss] What does this say about the current ISOC?
Date:   6/2/02 5:12:48 PM Eastern Daylight Time
From:   [email-masked] (Lucia Ruedenberg Wright)
Sender: [email-masked]
To: [email-masked], [email-masked]
CC: [email-masked], 
[email-masked], [email-masked], 
[email-masked], [email-masked], [email-masked] 
(Jay Robert Hauben), [email-masked]

As president of ISOC-NY, I am registering a complaint that journalists
from the publication _Amateur Computerist_ in New York, are being denied
press access to INET2002. The following report was posted to
[email-masked]. ISOC is displaying indifference to the grassroots
movement of internet users and appears to be for sale to corporate
interests only.

Lucia Wright
President, isoc-ny

> On Thu, 30 May 2002, Jay Hauben <[email-masked]> wrote:
>
> > The Amateur Computerist began covering the Internet in 1988. In
> > September 1991 when the Wall Street Journal was going to carry one of
> > its first articles about the Internet, its reporter interviewed one of
> > the editors of the Amateur Computerist. In 1992 another editor,
> > Michael Hauben, was one of the founding members of the Internet
> > Society. The AC has covered the Internet and Internet related events
> > in depth. Its reporters attended and reported on INET96 and INET98.
> > Extensive coverage and criticism was given of ICANN. One of our
> > editors, Ronda Hauben, gave a talk at a meeting of ISOC-NY.
> >
> > All of the AC reportage comes from the viewpoint that the Internet is
> > a public treasure and needs the protection of the governments of the
> > world. But the AC welcomes a spectrum of viewpoints.
> >
> > But somehow the AC does not belong at INETs any more. The coverage of
> > INETs should be the exclusive domain of the mainstream media not the
> > public oriented media like the Amateur Computerist.
> >
> > The following email message was the response I received to the Amateur
> > Computerist's request to cover INET2002.
> >
> > Jay
> > ---------------------------------------------------------------------
> > From: Melissa Byrd <[email-masked]>
> > To: Jay Hauben <[email-masked]>
> > Subject: Re: Press Passes Requested
> >
> > Dear Jay,
> >
> > Thank you for your interest in covering INET 2002.  Unfortunately, I
> > cannot approve your request for an INET 2002 press pass.  Due the
> > limited space this year, we must give preference to those media
> > outlets with the broadest and largest audiences, such as Newsweek, The
> > Wall St. Journal, CNET, etc.  However, I will put your name on our
> > waiting list and contact you if there is a last-minute cancellation.
> >
> > We do value your interest in our conference and hope you are still
> > able to attend INET 2002.
> >
> > Kind regards,
> > Melissa Byrd
> > Marketing Communications/INET 2002
> >
> > Foretec Seminars
> > 5 Commonwealth Road
> > Natick, MA 01760
> > (508) 650-4020 x224
> > [email-masked]
> >
> > At 10:47 PM 5/20/02 -0400, you wrote:
> > >Dear Meissa,
> > >
> > >Thank you for your email message.
> > >
> > >You wrote:
> > >
> > >  Hi Jay,
> > > >
> > > > I would be more than happy to consider you for press registration,
> > > > however I am not familiar with your publication.  Could you
> > > > perhaps email me a copy
> > > > or the URL?  Also, please describe your distribution.
> > > >
> > >
> > >The wedsite for issues of the Amateur Computerist is:
> > >
> > >http://www.ais.org/~jrh/acn/text
> > >
> > >Perhaps you would be interested in our reports from previous INETs.
> > >For example part of our coverage of INET96 can be seen in Vol 7 no 2:
> > >
> > >http://www.ais.org/~jrh/acn/text/ACN7-2.txt
> > >
> > >Our distribution is via paper copies to libraries and at conferences,
> > >hearings and academic events; via email to a mailing list of
> > >subscribers and via announcements of the URL and table of contents for
> > >each new issue on mailing lists and Usenet newsgroups. We post
> > >individual articles to major mailing lists and newsgroups and
> > >encourage reposting and web posting of the articles.
> > >
> > >We have carried extensive discussion about Usenet, the Internet, ICANN
> > >and especially the social impact of the Net.
> > >
> > >Two web pages that say a bit more about the ACN can be seen at:
> > >
> > >http://www.ais.org/~jrh/acn/acnindex.html
> > >
> > >and
> > >
> > >http://www.columbia.edu/~hauben/acn/WhatIsACN.html
> > >
> > >I hope you will let me know your response to our request for press
> > >passes for INET2002 soon.
> > >
> > >Thank you.
> > >
> > >Take care.
> > >
> > >Jay Hauben
> >
> > Melissa Byrd
> > Marketing Communications
> >
> > Foretec Seminars
> > 5 Commonwealth Road
> > Natick, MA 01760
> > (508) 650-4020 x224
> > [email-masked]
> >
> > Register today for INET 2002!
> > www.inet2002.org
> >
> >
> > _______________________________________________
> > Discuss mailing list
> > [email-masked]
> > http://www.isoc-ny.org/mailman/listinfo/discuss
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------------------------------

Date: Sun, 02 Jun 2002 15:04:27 -0400
From: Joanna Lane <[email-masked]>
Subject: RE: [ga] Comments on ICANN Reform Recommendations

Karl Auerbach
You can
> check someone's credentials to practice law in California by going to
> http://www.calsb.org/mm/sbmbrshp.htm )
>

Dear Mr. Sims,
Reviewing the California State Bar Membership records, I notice that
although Karl Auerbach is on record there as an active member
http://www.calsb.org/cgi-bin/NT201C?081493, it would appear that you are
not. http://www.calsb.org/cgi-bin/NT202C.

I find this rather odd. Only ACTIVE members may practice law in California.
ICANN is a California Corporation. You are ICANN's attorney.

Therefore, for the benefit of the public, would you please explain how you
can represent ICANN and practice in California, as you do, without active
membership of the State Bar?

Thank you.

Regards,
Joanna

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------------------------------

Date: Sun, 02 Jun 2002 18:12:07 -0700
From: Sandy Harris <[email-masked]>
Subject: Re: [ga] Comments on ICANN Reform Recommendations

Joanna Lane wrote:
> 
> Karl Auerbach
> You can
> > check someone's credentials to practice law in California by going to
> > http://www.calsb.org/mm/sbmbrshp.htm )
> >
> 
> Dear Mr. Sims,
> Reviewing the California State Bar Membership records, I notice that
> although Karl Auerbach is on record there as an active member
> http://www.calsb.org/cgi-bin/NT201C?081493, it would appear that you are
> not. http://www.calsb.org/cgi-bin/NT202C.
> 
> I find this rather odd. Only ACTIVE members may practice law in California.
> ICANN is a California Corporation. You are ICANN's attorney.
> 
> Therefore, for the benefit of the public, would you please explain how you
> can represent ICANN and practice in California, as you do, without active
> membership of the State Bar?

That may or may not be a good question; I don't know
enough about US rules to tell.

Theere's info on Joe on his firm's site:
http://www1.jonesday.com/attorneys/bio.asp?AttorneyID=13072

It says he's based in Washington, and has been admitted
to the bar in Arizona and DC.
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Date: Sun, 02 Jun 2002 18:53:59 -0700
From: Jeff Williams <[email-masked]>
Subject: [ga] ISOC making bid for .ORG yet: Internet Society denies press credentials to online publication

All assembly members,

  Today interesting information came to light for INET 2002 in
Washington D.C. on the ISOC. See below copied post
from Politech:

===============  Copy starts here ================

Subject:  FC: Internet Society denies press credentials to online
publication
   Date: Sun, 02 Jun 2002 16:35:35 -0400
   From: Declan McCullagh <[email-masked]>
     To:  [email-masked]
    CC:  , [email-masked], [email-masked],
        [email-masked]

[I hope this is a simple misunderstanding and the good folks at the
Internet Society can clear it up. Disclaimer: I ran for the board of
directors of the Internet Society four years ago. (I lost.) --Declan]

- ---

Date: Sat, 1 Jun 2002 15:21:53 -0400 (EDT)
From: "John F. McMullen" <[email-masked]>
To: Dave Farber <[email-masked]>, <[email-masked]>

FYI

- ---------- Forwarded message ----------
Date: Sat, 1 Jun 2002 15:10:17 -0400 (EDT)
From: [email-masked]
To: [email-masked]

I thought this would be of interest:

The Internet Society is having a conference INET'2002 in Washington
DC in the middle of June. Following is some backgound on the reporting
about the Internet by the Amateur Computerist, and the denial of
press credentials by INET'2002 to Amateur Computerist editors.

The business press is welcome at INET'2002 as press, not the online
public interest press.

 >From jrh Sat Jun  1 11:14:04 2002
 >Date: Sat, 1 Jun 2002 11:14:03 -0400 (EDT)
 >From: [email-masked] (Jay Hauben)
 >Subject: ISOC denies presspass

The Amateur Computerist began covering the online world in 1988. In
September 1993 when the Wall Street Journal was going to carry one of
its first articles about the Internet, its reporter interviewed one of
the editors of the Amateur Computerist. In 1992 another editor, Michael
Hauben, was one of the founding members of the Internet Society. The
AC has covered the Internet and Internet related events in depth. Its
reporters attended and reported on INET96 and INET98. Extensive
coverage and criticism was given of ICANN. One of our editors, Ronda
Hauben, has been invited to speak about Internet related topics in many
venues including at a meeting of ISOC-NY.

All of the AC reportage comes from the viewpoint that the Internet is
a public treasure and needs the protection of the governments of the
world. But the AC welcomes a spectrum of viewpoints.

But somehow the AC does not belong at INETs any more. The coverage of
INETs should be the exclusive domain of the mainstream media not the
public oriented media like the Amateur Computerist.

The following email message was the response I received to the
Amateur Computerist's request to cover INET2002.

Jay
The latest issue of the Amateur Computerist Vol 11 No 1 is available
at:

http://www.ais.org/~jrh/acn/text/acn11-1.txt
- ---------------------------------------------------------------------
 >>From: Melissa Byrd <[email-masked]>
 >>To: Jay Hauben <[email-masked]>
 >>Subject: Re: Press Passes Requested

Dear Jay,

Thank you for your interest in covering INET 2002.  Unfortunately, I
cannot approve your request for an INET 2002 press pass.  Due the
limited space this year, we must give preference to those media
outlets with the broadest and largest audiences, such as Newsweek,
The Wall St. Journal, CNET, etc.  However, I will put your name on our
waiting list and contact you if there is a last-minute cancellation.

We do value your interest in our conference and hope you are still
able to attend INET 2002.

Kind regards,
Melissa Byrd
Marketing Communications/INET 2002

- -------------------------------------------------------------------------

POLITECH -- Declan McCullagh's politics and technology mailing list
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================  Copy ends here =============

Regards,
- --
Jeffrey A. Williams
Spokesman for INEGroup - (Over 124k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [email-masked]
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
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------------------------------

Date: Sun, 02 Jun 2002 22:00:02 -0400
From: Dan Steinberg <[email-masked]>
Subject: Re: [ga] Comments on ICANN Reform Recommendations

Joanna, 

Like Joe Sims I am not a member of the Cal. state Bar. I do remember
that several states (cal included) have specific definitions of what an
out-of-state attorney can do and what constitutes the unauthorized
practice of law (UPL). You may find that what concerns you is covered
under the specifics of cal statutes or some of the recent caselaw
defining UPL.

If you are concerned about this, why not contact the state bar directly?
I'm sure they can answer your questions.

Joanna Lane wrote:
> 
> Karl Auerbach
> You can
> > check someone's credentials to practice law in California by going to
> > http://www.calsb.org/mm/sbmbrshp.htm )
> >
> 
> Dear Mr. Sims,
> Reviewing the California State Bar Membership records, I notice that
> although Karl Auerbach is on record there as an active member
> http://www.calsb.org/cgi-bin/NT201C?081493, it would appear that you are
> not. http://www.calsb.org/cgi-bin/NT202C.
> 
> I find this rather odd. Only ACTIVE members may practice law in California.
> ICANN is a California Corporation. You are ICANN's attorney.
> 
> Therefore, for the benefit of the public, would you please explain how you
> can represent ICANN and practice in California, as you do, without active
> membership of the State Bar?
> 
> Thank you.
> 
> Regards,
> Joanna
> 
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SYNTHESIS:Law & Technology
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Date: Mon, 03 Jun 2002 06:37:10 +0200
From: "J-F C. (Jefsey)  Morfin" <[email-masked]>
Subject: Re: [ga] Comments on ICANN Reform Recommendations

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Dear Karl,
I certainly understand that the Californian oddities may affect the way the 
ICANN is set-up, is advised or is managed. But I am not interested. The 
priority is to the worldwide public interest, the role of the Californian 
choice is to best serve it. If this choice is wrong it is to be changed, or 
the ICANN is to be forgotten by the World Internet Community and another 
solution is to be found to host the IANA. I only hope that you are 
personnaly protected from the consequences of this solution, and that Andy 
will be since during the camapign we rose that question several times in 
Europe and we never got responses.
jfc

On 19:16 02/06/02, Karl Auerbach said:
>On Sun, 2 Jun 2002, J-F C. (Jefsey)  Morfin wrote:
> > Dear Kent,
> > US legalities are of no interest here.
>
>Please don't make the assumption that the writer in question was making
>anything that even distantly approximates an accurate statement about the
>obligations of a California public-benefit corporation (or US Federal
>tax-exempt organization.)
>
>(Although one can have expertise in matters of California law without
>having a license to practice, the two often go hand-in-hand.  You can
>check someone's credentials to practice law in California by going to
>http://www.calsb.org/mm/sbmbrshp.htm )
>
>Thick volumes have been written on these matters.  As a general
>proposition public-benefit bodies are not divorced from the public whose
>benefit they are formed to serve.
>
>And you will also find that California is not some kind of unique haven
>for pseudo public-benefit bodies.  Sure, I'm biased in favor of California
>- I'm a native Californian - but even if I do say so myself, the legal
>regime here is based on many of the same notions of corporate forms found
>in other states of the US and other nations of the world.
>
>One of my concerns, and one I expressed during the first board "retreat",
>was that these ICANN r"evolution" proposals are so radical that they
>vitiate the understandings that gave rise to ICANN's California
>public-benefit and US Federal tax exempt status and thus could lead to
>either an invalidation of those privileged positions or require, at least
>in the latter case, approval from the US Internal Revenue Service (IRS) or
>a requalification.
>
>                 --karl--

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Date: Mon, 3 Jun 2002 16:56:19 +1200
From: "Peter Dengate Thrush" <[email-masked]>
Subject: [ga] ccTLD dialogue with Joe Sims (wasRe: your comments

- ----- Original Message -----
From: "Joe Sims" <[email-masked]>
To: <[email-masked]>
Cc: <[email-masked]>
Sent: Friday, May 31, 2002 12:35 AM
Subject: your comments

>
>
> It is certainly true that some ccTLDs have been very supportive, and it is
> also true that many ccTLDs will say privately that they do not support the
> more radical statements of their "leaders,"

Go on, surprise me! With 242 ccTLDs, and the diversity of the whole world
internet community involved, you were expecting what, unanimity?
Welcome to the world (outside the US, that is,) Joe! Do you know how big the
Asia Pacific region alone is?

>but as far as I can tell, your
> position has been that the cc's that you speak for will come into ICANN
> only if ICANN agrees that they get to have a veto over any ICANN policies
> that they don't care to follow.

Its much simpler than that. ICANN wasn't set up to, and can't make policies
for registries which are subject to their national laws. An ICANN-made
policy may simply be illegal in their country. Think about privacy and the
EU for a quick example.

And this approach is the same as the RIRs have adopted.

We have a policy making process in my country - its time consuming, because
damn it, we have to listen to all those kooks and nuts you would rather
preclude. But eventually we get there - balancing requests from IP interests
with privacy, individuals with others and all under the watchful (but
supportive eye ) of the Government. There's no way having gone through that
we are going to change a policy because ICANN (in its present state) says
so.

>  We might be able to agree that all parties
> could have performed better over the last years, and by that I mean all
> parties -- the GAC, cc administrators, ICANN staff and Board, and
> individual national governments.  But there is still a core issue:  do the
> operators of these particular TLD registries have any obligation to the
> global Internet community, in addition to their obvious responsibilities
to
> their local Internet community?

Yes, they do. And they have been meeting it for longer than the existence of
ICANN, and will continue to if ICANN fails and will continue to do so while
ICANN 2 develops.

 Recall the cctld speakers at the security forum in LA last year as a quick
example. They take their obligations - which they see largely as maintaining
connectivity- as seriously as they always have.

>If they do, ICANN is the vehicle for
> establishing policies that reflect that obligation to the global
>community.

Possibly, and that's why any of us are here, but not in its current form,
and
not with its previous attitudes. You did not respond to my reference to the
decisions in Montevideo, but Patricio Poblete has also reminded you of
them -what don't you get?

> This has been the position of the staff, and the Board, and the GAC, from
> the beginning, and until this principle is accepted, it seems unlikely
that
> we will make much progress.  From your posting and its continuing
criticism
> of the GAC principles, I don't see much sign of progress.

The GAC principles are highly contentious and in my view and others just
plain wrong in their declaration that the internet naming system is a public
resource. How does the USG regard that claim, for example? Does Congress
accept that the DNS is now part of the world common?
This is a fascinating debate that the Board has, quite deliberately, never
engaged in. It has never been the position of the Board. Misleading of you
to try and position these issues as an alliance between the board, staff and
GAC against the cctlds.

It would have major ramifications on the role of governments in ICANN, if
the DNS were to have the same status as, say, the high seas, especially as a
party separate from any role they may have as the possible legislative
authority over the personages and assets of the cctld managers.

>  Nevertheless, I
> look forward to your upcoming meeting, and hope that it will help bring
> closure to what has to date been an unproductive debate.
>

To be fair, there has been almost no debate. There have been some assertions
thrown out- (Louis' comments about contracts in Cairo, come to mind) and
then long periods of silence.

I suggest we move this
relatively historic exchange over to the cctld-discuss list, where there is
an opportunity for debate.

In a later post Joe Sims said:

>I appreciate the clarification.  And you have certainly highlighted some
>issues that are important to some people.  The issue of cc's that act like
>gTLDs is a particularly relevant issue; if a cc registry is going to
>aggressively solicit name registrations from people all over the world,
>shouldn't it have to meet the same minimum standards as do gTLDs?

No. Why should it?
Decisions made by cctlds are the subject of the process of the local
internet community, and might be an expression of direct national government
directions. ICANN has -lets say it together -no role in the making or
managing of sovereign national policy.

>Such
>things as escrow requirements to protect against failure, dispute
>resolution procedures or something equivalent to guard against
>cybersquatting, whois systems that actually work so people can find our who
>to contact when an issue arises  -- stuff like this?

No. These things, in a cctld, have nothing to do with ICANN. These are
issues for the LIC, and
because they are in the main subject to clear and identifiable national law,
there is an available remedy for any problem which a registrant might
encounter. How presumptuous to think that ICANN should or could play any
role in this. Its not ICANN's job to protect the people of a cctld from
failure of its registry. Its simply absurd to suggest that its ICANN role to
provide a dispute resolution process, not the national legal system.
And if there's a gap in the national laws, there are national remedies.

Cybersquatting in a cctld cannot have anything at all to do with ICANN,
whose mission is technical management of names and numbers, not to protect
intellectual property rights.

Next, lets agree that the most concerning area of mission creep possible is
to allow ICANN 2 to divert itself from technical names and numbers
management to intellectual property, anti trust and other commercial issues.

>It is one thing to
>argue that a ccTLD that restricts registrations to its nationals or
>residents of the country of its charter should have the "right" to do what
>it wants on these points, since those adversely affected always have
>recourse to the national government, local courts, etc.  But when the
>registry decides to take advantage of the stable global DNS to attract
>registrants that, as a practical matter, do not have those protections, and
>can do so only because the rest of the world is working together through
>ICANN to maintain the global infrastructure that permits that behaviour,
>that seems to me to be a different situation altogether.  As I understand
>the ICANN position, there is no desire to interfere in any way with local
>policy development; that should be up to the local community.  But when the
>registry takes actions that have global implications or effects, it should
>be subject, as are all other similarly situated registries, to the global
>policy development process.

That's a complicated re-statement of the same mistaken belief.
The cctlds have always cooperated in matters of interoperability and
stability.  If anything, it is the ICANN/IANA refusal to update the cc
database that has done more than any one to threaten that.

I agree with you completely, if by the above you are referring to stability
and interoperability issues. No one should be allowed to play in the sand
pit in a way that spoils it. But you are not talking about such issues, I
suspect. I suspect you are talking about US competition-type laws, and other
business consequences of such use, which are not ICANN issues at all.

It has nothing to do with ICANN's mission of technical management of names
and numbers to provide consumer protection to registrants in those cctlds
that may lack what you regard as appropriate consumer protection laws.
Re-stating that this is a "global implication or effect" does not make the
policy any less an purely domestic matter for the cctld concerned, nor
validate a role for ICANN in interfering by setting policy for a cctld.

This is the crucial point. This is not an ICANN matter.

The cctlds are not equivalent to the gtlds. Regulations which ICANN  passes
as the LIC for the g-space are nothing to do with the laws and policies each
cctld develops by its own processes.

Until we get this clear, the real prospects where there can be discussions
about crossover cannot begin. I for one, see much advantage in a place where
those problems that have been solved in the g-space can be brought to the
collective attention of the ccTLDs, who may well adopt similar or
complementary policies (and vice versa).  An existing example is the
adoption by several
countries of UDRP as the local DRP. I see the ccSO as the place where the
cc's will meet, and it should be to the ccSO that proposals for "crossover"
policies can be debated.

But step one is for you and ICANN to accept that the cctlds do not operate
under a licence from ICANN. They operate under a duty to their LIC.

>What I take from your post is that you want
>someone else to shoulder the burdens of preserving and protecting the
>global DNS that makes it possible for the ccTLDs to function, but to
>basically leave you alone to do with it what you please (although maybe you
>would be willing to contribute to the purely mechanical work of keeping
>your database records straight).  In antitrust economics, this is called
>"free-riding" and is generally not considered something to be admired or
>protected.

Interesting that you refer to antitrust economics. The first exercise in an
anti trust case is to identify the relevant market. The cctlds and the
g-tlds are not in the same market. Wrong model.
g-TLDs exist by virtue of an ICANN contract: cctlds act as trustees for
their LIC.

When you are willing to adopt a model like ours -where policy is made by an
entirely open membership for a nominal annual fee, with direct elections to
a council which coordinates that policy making, we might have a basis for
the similar application of laws - the so-called "parity" issue. When that
directly elected body can choose to add new TLDs, and whether to charge for
domain names, and if so, how it will spend any surpluses generated, you
might have gtlds subject to the same conditions as cctlds. I should have
thought that would have scared the shareholders of the g-tld registries
silly. Just as they will not allow you to change the rules for gtlds, rest
assured that the LICs are unlikely to change the rules of their respective
cctlds..

My regards

Peter Dengate Thrush
Senior Vice Chair
Asia Pacific TLD Association

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