Subject: GA-DIGEST V1 #400
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST           Tuesday, April 17 2001           Volume 01 : Number 400

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

Date: Tue, 17 Apr 2001 09:54:47 -0700
From: "William X. Walsh" <[email-masked]>
Subject: Re[2]: [ga] Re: [PRIVATE]  List Rules and Protocols

Hello Roeland,

Tuesday, April 17, 2001, 9:32:49 AM, Roeland Meyer wrote:
> IMHO, we were finally begining to make headway into substantive discussions.
> Let's not take the 12-steps backwards that this is threateniing to do.

I agree.  Let's make sure our chairs understand that their mandate is
NOT to push their agenda, but to push our consensus, regardless of how
it comports with their agendas, and that until they coordinate our
consensus, they have no mandate to advocate.

If they can't understand that, then this issue needs to be addressed.

- -- 
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 William                            mailto:[email-masked]

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Date: Tue, 17 Apr 2001 09:50:38 -0700
From: Dave Crocker <[email-masked]>
Subject: Re: [ga] My policy on postings - and slurs

By way of demonstrating the basis for taking Prof. Froomkin's contributions 
with some caution:

At 06:22 AM 4/17/2001, Michael Froomkin - U.Miami School of Law wrote:
>Perhaps therefore I should mention again that I routinely killfile ... 
>many of the more active posters on ICANN-related lists.

1.  His note begins with the personal rather than the substantive.  That 
might seem minor, but it shows what he considers the more important.

2.  He has frequently touted that he filters out mail, and frequently been 
explicit about who he filters.  These constitute personal attacks; not 
unique on this list, but still that means he has brought himself down into 
the mud with the rest of us.

3.  He is pointedly filtering out serious points of view with which he does 
not agree.  That rather flies in the face both of objectivity and academic 
rigor.

>On the issues of substance, I'm comfortable that my published work speaks
>for itself, and am happy to discuss serious responses that are either
>published in a serious journal or communicated to me directly (that
>excludes email from people in my killfile

Again, this highlights that validity of content is secondary to other, more 
personal issues.

>   I would note that to date AFAIK no one has published a counter-argument 
> to my ICANN paper,

What is interesting about this comment is that it ignores a range of 
reasons that counter-arguments might not get published, independent of 
simple logistics.

It is common for the academic community of a profession to be disjoint from 
the practising community of the profession.  (Computer science often 
suffers from this.)  So, for example, one possibility is that no one else 
considers his views significant enough to respond to.  Taking such a line 
of analysis deeper, perhaps none of the practising community takes it 
seriously and perhaps none of the academic community considers the topic 
that significant.

The rule of serious scientific effort is that simply getting something 
published is, at best, a beginning point; it is not an ending point.  The 
effort is validated ONLY by being taken up by others and substantiated by 
their further work.

Rather than noting that no one has published a retort, if Prof. Froomkin 
were serious and diligent about the legal import of his work, he would be 
much more concerned whether anyone has adopted his work and elaborated it...

>The following names in my killfile are potentially relevant to this list.

So let's both start and finish the message with the personal stuff.  The 
ensures that "substance" comments are relegated to trivia.

d/

- ----------
Dave Crocker   <mailto:[email-masked]>
Brandenburg InternetWorking   <http://www.brandenburg.com>
tel: +1.408.246.8253;   fax: +1.408.273.6464

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Date: Tue, 17 Apr 2001 10:36:29 -0700
From: "Christopher Ambler" <[email-masked]>
Subject: [ga] This has gone on long enough

unsubscribe ga

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Date: Tue, 17 Apr 2001 10:11:07 -0700
From: "William X. Walsh" <[email-masked]>
Subject: Re[2]: [ga] List Rules and Protocols

Hello Patrick,

Tuesday, April 17, 2001, 9:18:30 AM, Patrick Corliss wrote:
> It was then that William Walsh decided to intervene.

Wrong. I responded to your INITIAL message, in which you were
practically issuing a direct request for people to file complaints,
and indicated a gross over stretching view of the rules.

That alone I found irresponsible.

> I therefore decided to write privately to William along the following lines:

>> You are not in a position to judge how many complaints are received on
>> a daily basis in respect of comments such as these.  The fact that people
>> are disposed to make complaints suggests that the issue of "ad hominem"
>> attacks is a matter of concern.

>> The posting by Kent Crispin falls into the category of making comments
>> of a personal nature.  It suggests that Michael Froomkin is biased.  Chris
>> Ambler's response was unfair as he attributed to Kent Crispin what was
>> said by Dave Crocker.

>> All you are doing is undermining the integrity of the list.

> I find there is nothing objectionable in these explanatory comments.  They are
> clearly reasonable and private.  I concluded my remarks by saying:

First of all, when you address any member in your role as alternative
chair, and especially when that is done on the issue of list
moderation, you have no expectation that such an address will be kept
private.

Secondly, the last line is the first thing I took exception to.

Thirdly, you indicated that comments were violating the rules simply
because they were of a "personal nature."  The list rules do not
include such a reference,and your messages were clearly an intent to
broaden those rules without any consensus or approval of the assembly
itself.

It was therefore appropriate that those actions be brought to the
list.

>> If you want to discuss the rules, please do so without discussing cases
>> which may come before the List Monitors.  I'll post an extract of the rules
>> onlist.

> Clearly William took objection to this request. There are two important issues
> involved.  One is that further discussion would interfere with the List Monitors
> ability to adjudicate.  Another is the general trend to argument on the list.

When the discussion goes directly to the suitability of a Chair, and
to the overextension of rules that could result in someone being
barred from posting to the list, the general trend SHOULD be to
discuss those things on list.

> It is really not sensible to be inundated with complaints from everybody when it
> is not at all clear who started, who responded and who makes it worse.  It would
> lead, in the worst case, to a general suspension of too many people.

Only in your broaden view of the rules.  You have repeatedly on other
lists emailed numerous people (some of whom are on this list also and
have emailed me privately in the last 12 hours) indicating to them
that they should stop certain threads, or restrict their postings. You
have a history of trying to assert some personal moral code on the
discussions in these forums.  Now that you are in a position to impose
sanctions, it is a very real concern, especially when so early you
already show a gross misinterpretation of the rules, and a tendency to
expand them beyond your authority.

> In my view, William has made several unsupported criticisms.  The basic rule
> says "respect to the participants is mandatory".   Note the word "respect".

My criticisms are well supported by the posts indicated.

> The rule continues to say that "messages must observe a minimum of decorum,
> including not indulging in personal attacks, insults or slander."

And none of that has occurred here.

> It is easy to see that this rule has been breached.   In particular I find that
> my moderate, private letter to William X. Walsh was reposted to the list (in
> itself not showing respect to the list participants) and mischaracterised as:

You have no respect of privacy when acting as chair and when the
subject is that you are requesting that certain subjects not be
discussed, especially when you carry the ability to impose sanctions
as a result.

> (a)    exceeding my authority

This was documented, and not mischaracterized.

> (b)   demanding and unreasonable

This was documented, and not mischaracterized.

> (c)    inappropriate and improper

This was documented, and not mischaracterized.

> (d)    outside the scope of the rules

This was documented, and not mischaracterized.

> (e)    an expansion of my role

This was documented, and not mischaracterized.

> As well, having identified a lack of "respect to the participants" my attempt to
> moderate the onlist behaviour was subsequently undermined as I predicted.

Only by yourself, Patrick.

> Bringing the Co-Chair into disrepute allowed other participants to engage in the
> same behaviour.  I have tried very hard to show due respect to my critics.

You brought it on yourself, the point was made BEFORE THE ELECTION
that the role of the GA Chair was NOT to be a mandate for a
"platform."  Apparently our Chair and alternate chair ignored that.

> What is improper however, is to threaten, badger and bully me to perform my role
> in a manner subservient to any member of this list.

No one did that.

You were directed to do your duty, which does not include you pushing
your own platform for change, or broadening rules on your own
initiative, to to direct people not to discuss certain subjects,
particularly those that related to list moderation.

Specificly subjects of list moderations, including specific incidents,
ARE IN FACT on topic and relevant to the list.

>> As you have challenged and threatened me on the very first occasion I tried to
>> bring some moderation to the list, I would ask you to propose a motion of
>> no-confidence in the Co-Chair.

> Mr Walsh has since replied to the effect that this is not possible.  In the
> circumstances, he can take whatever action he feels is appropriate.

There is no such provision.  The Names Council appointed you, the only
way to remove you is for you to step down, or for the Names Council to
replace you.

> My view is that this sort of behaviour wastes everybody's time.  I cannot
> understand why mature, sensible and intelligent people should try so hard to
> sabotage our efforts to progress the agenda of the General Assembly.

If only that was what you were doing.   You were not doing that, you
were progressing your own agenda.

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 William                            mailto:[email-masked]

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Date: Tue, 17 Apr 2001 10:04:27 -0700
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] Re: iCANN's protection

> From: Dave Crocker [mailto:[email-masked]]
> Sent: Tuesday, April 17, 2001 2:29 AM
> 
> At 12:56 AM 4/17/2001, DPF wrote:
> >On Mon, 16 Apr 2001 21:20:24 -0700, Kent Crispin wrote:
> >
> > >1) While extremely erudite, the paper is fundamentally just a legal

> >Why does the fact you find his research hard to understand 
> (dictionary
> >definition of abstruse) mean it is any less valid?

> By the way, when something is difficult to understand, it is 
> less likely that it can be validated.

This entire subject is highly abstract in both law and computer science,
dealing as it does, with meta-concepts of identity and location. As such, it
is difficult to understand by most people. Any paper dealing with this
subject directly (rather than "by analogy") will tend to appear "abstruse".
This is especially true if it wants to be rigorous.

WRT validation, mathmatical proofs are, by nature, abstruse, yet they can be
validated. Validation is nothing more than verifying that the reasoning is
consistent and correct. "Correct" being a term of art meaning that it
doesn't defy any rules of logic or acceptable levels of evidence regarding
completion of thought and thoroughness of investigation. As a thesis, Dr
Froomkin's work need not be further challenged on that front, as it has
already passed peer review, AFAIK.

Either challenge the paper directly, in its own context, or admit that you
don't know what you are talking about. The polemic that you bring here,
while worthy of you, is not worthy of this list, IMHO. It does not apply nor
is it correct.

> > >4) All this would perhaps not matter if Froomkin were an objective
> > >observer, but he is not.
> >
> >Being objective is to be "Uninfluenced by emotions or personal
> >prejudices".  I am not aware Michael has any commercial interests
> >which would lead to be not objective or that he has any personal
> >prejudices.
> 
> Prof. Froomkin's biases are clear and consistent.  He seeks 
> to criticize 
> ICANN.  He seeks to do it vigorously and at every turn.  His 
> motives might 
> be less clear, though the instant he starts getting public 
> exposure for his 
> efforts, then it is clear that he is serving to promote his career.

I thought that you just gave a great big lecture about how we should avoid
ad hominem comments. Yet, you dedicate and entire ad hominem paragraph, in
this post, not against what Dr. Frookin says, but his motivations. I guess
that you think it is okay for you to make ad hominem attacks, but not
everyone else (excepting maybe, your friends). Not only is that an unfair
double-standard, but it is also a Machiavellian means of trying to control
the discussion. You've just stepped off the moral high-ground that you
claimed so recently.

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Date: Tue, 17 Apr 2001 10:32:33 -0700
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] My policy on postings - and slurs

I might point out that this entire message is an ad hominem attack against
Dr. Froomkin. From the most highly regarded disciple, who preaches against
the ad hominem attack at every opportunity. In fact, he is making this
attack under the guise of preaching against ad hominem attacks?!?!

BTW, I find nothing wrong with Dr. Froomkin publishing his killfile list. It
is most enlightening to see whom he does and does not listen to.

> -----Original Message-----
> From: Dave Crocker [mailto:[email-masked]]
> Sent: Tuesday, April 17, 2001 9:51 AM
> To: Michael Froomkin - U.Miami School of Law
> Cc: [email-masked]
> Subject: Re: [ga] My policy on postings - and slurs
> 
> 
> By way of demonstrating the basis for taking Prof. Froomkin's 
> contributions 
> with some caution:
> 
> At 06:22 AM 4/17/2001, Michael Froomkin - U.Miami School of Law wrote:
> >Perhaps therefore I should mention again that I routinely 
> killfile ... 
> >many of the more active posters on ICANN-related lists.
> 
> 1.  His note begins with the personal rather than the 
> substantive.  That 
> might seem minor, but it shows what he considers the more important.
> 
> 2.  He has frequently touted that he filters out mail, and 
> frequently been 
> explicit about who he filters.  These constitute personal 
> attacks; not 
> unique on this list, but still that means he has brought 
> himself down into 
> the mud with the rest of us.
> 
> 3.  He is pointedly filtering out serious points of view with 
> which he does 
> not agree.  That rather flies in the face both of objectivity 
> and academic 
> rigor.
> 
> 
> >On the issues of substance, I'm comfortable that my 
> published work speaks
> >for itself, and am happy to discuss serious responses that are either
> >published in a serious journal or communicated to me directly (that
> >excludes email from people in my killfile
> 
> Again, this highlights that validity of content is secondary 
> to other, more 
> personal issues.
> 
> 
> >   I would note that to date AFAIK no one has published a 
> counter-argument 
> > to my ICANN paper,
> 
> What is interesting about this comment is that it ignores a range of 
> reasons that counter-arguments might not get published, 
> independent of 
> simple logistics.
> 
> It is common for the academic community of a profession to be 
> disjoint from 
> the practising community of the profession.  (Computer science often 
> suffers from this.)  So, for example, one possibility is that 
> no one else 
> considers his views significant enough to respond to.  Taking 
> such a line 
> of analysis deeper, perhaps none of the practising community takes it 
> seriously and perhaps none of the academic community 
> considers the topic 
> that significant.
> 
> The rule of serious scientific effort is that simply getting 
> something 
> published is, at best, a beginning point; it is not an ending 
> point.  The 
> effort is validated ONLY by being taken up by others and 
> substantiated by 
> their further work.
> 
> Rather than noting that no one has published a retort, if 
> Prof. Froomkin 
> were serious and diligent about the legal import of his work, 
> he would be 
> much more concerned whether anyone has adopted his work and 
> elaborated it...
> 
> 
> >The following names in my killfile are potentially relevant 
> to this list.
> 
> So let's both start and finish the message with the personal 
> stuff.  The 
> ensures that "substance" comments are relegated to trivia.
> 
> d/
> 
> ----------
> Dave Crocker   <mailto:[email-masked]>
> Brandenburg InternetWorking   <http://www.brandenburg.com>
> tel: +1.408.246.8253;   fax: +1.408.273.6464
> 
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Date: Tue, 17 Apr 2001 10:15:49 -0700
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] Rules & Protocols Committee

> From: babybows.com [mailto:[email-masked]]
> Sent: Tuesday, April 17, 2001 6:06 AM

> The voters of the GA made the decision to select the two of 
> us to champion a new effort to focus the efforts of the
> General Assembly.  This was the collective will of an
> electorate that recognized the need for change.  
>
> As such, it is my sentiment that this Assembly should take a 
> very dim view of Mr. Walsh's implied threat to launch a campaign
> directed at the Names Council to overturn the decisions of this
> body -- the GA is not well served by such measures.

I agree with this.
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Date: Tue, 17 Apr 2001 14:04:02 -0400
From: Sotiris <[email-masked]>
Subject: Re: [ga] Additional Mailing Lists?

I am in favour of David Farrar's motion(s).

Sotiris Sotiropoulos

DPF wrote:

> On Tue, 17 Apr 2001 10:21:34 +1200, you wrote:
>
> >At 07:01 17/04/01 +1200, DPF wrote:
> >.
> >>
> >>I would suggest a third.  The WIPO 2 report has some very significant
> >>recommendations and I believe it would be useful to have a mailing
> >>list to start discussing these earlier rather than later.  If the NC
> >>set up a working group then any prior work done can flow into that.
> >>
> >
> >David,
> >
> >If you can reformulate this as a motion, I second it.
>
> Okay here goes.  I move that the General Assembly set up the following
> dedicated mailing lists (can be voted on separately).
>
> 1) A WIPO mailing list ([email-masked]) to discuss the third interim
> report of the second WIPO Internet Domain Name Process.
>
> The WIPO report is wide reaching with recommendations dealing with
> personal names, Pharmaceutical INNs, international inter-governmental
> organisations, geographical names and tradenames.
>
> 2) A DNSO Review mailing list ([email-masked]) to continue
> discussion on ways to improve the structure and functioning of the
> DNSO
>
> 3) An alternative roots mailing list ([email-masked]) to provide
> a specific forum for the subject in terms of what bearing if any they
> have on ICANN
>
> And finally a piece of trivia - did anyone else know that world
> intellectual property day is 26 April :-)
>
> DPF
> --
> [email-masked]
> ICQ 29964527
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Date: Tue, 17 Apr 2001 19:39:12 +0200
From: Thomas Roessler <[email-masked]>
Subject: Re: [ga] Re: iCANN's protection

On 2001-04-17 09:12:18 -0700, Kent Crispin wrote:

> I did not say his research isn't valid, and my understanding of
> the argument really isn't the issue.  I said his paper expounds a
> legal *theory*.  People appear to be confusing legal *theory*
> with legal *fact*.  Of course, Froomkin also adduces many legal
> facts to support his theory, but the question is, does his paper
> adequately consider alternate theories.  James Boyles piece
> indicates that there are respected legal scholars that disagree
> with Froomkin's premises.

"Legal fact" is a highly interesting notion by itself...  I'd yet
have to see the legal argument which is solely based on "legal
fact".  So lets rather say that he is putting forth legal arguments,
which aren't shared by all of his colleagues (which is not a
miracle, of course, since folks in that profesison hardly agree on
anything ;-).

> I deduce that from the emotional tone of some of his writings.
> eg:

[Icannwatch polemic against MR omitted.]

> You probably agree with Froomkins writings, above, and probably
> find them witty.  But I don't see how either of his ICANNWatch
> articles from which the above quotes came could be reasonably
> construed as anything but gratuitious personal attacks directed
> at Mike Roberts.  But perhaps I'm missing something? Perhaps you
> could explain to me how these articles are actually objective
> attempts to deal with serious issues?

Don't you think that one and the same person can be polemic and
objective about the same topic (or related topics), when dealing
with them at different opportunities?  Don't you think that one
person can put up a polemic opinion piece for political debate on a
web site, and write a high-quality research paper for an academic
journal on a related topic?

Michael doing something like that is not so much different from Dave
Crocker writing this:

| ps.  For all your preference in ad hominems, Chris, I notice the you
| ignored my observation that my position on where to draw the
| membership line is not consistent with what you would expect to be
| my client's preference.  Oops.

<[email-masked]>

Anyway, let's come to your note 2) in
<[email-masked]>:

> 2) The paper deliberately and explicitly ignores the single most
> distinctive issue concerning the root zone, and hence ICANN's
> "authority" -- the fact that no law can compel use of a particular
> root zone, and that control of the root zone is at best fragile and
> problematic.

You are basically claiming that Michael's arguments would only work
if there was a legal or factual DUTY to use the usual root servers.

Of course, such a duty does not exist.  And, of course, ICANN (or,
more precisely, the USG) is not the only player on the "root zone
market" - as we all know there are these folks who are running root
servers of their own.

HOWEVER, the alternative roots (no flames please, I'm not interested
in the "politically correct" names for these) have an extremely
small customer base, and can basically be ignored for any practical
purposes.  Now, that means that the USG de facto has the control
over the DNS name space.  From this fact, Michael concludes that the
USG has a duty to apply due process for its handling of this public
ressource - instead of creating a "private" de-facto monopoly on the
root zone market, which shows precisely the kind of behaviour you'd
expect from a monopoly.

(Of course, the actual question to be answered is how this monopoly
can be fixed or brought under control.  Would competition help?  Or
couldn't it persist on that market?  What kind of control mechanisms
should be established so the single player in that market is forced
to take into account public interest?)

- -- 
Thomas Roessler			    <[email-masked]>
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Date: Tue, 17 Apr 2001 12:03:59 -0700
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] Re: iCANN's protection

> From: Thomas Roessler [mailto:[email-masked]]
> Sent: Tuesday, April 17, 2001 10:39 AM

> HOWEVER, the alternative roots (no flames please, I'm not interested
> in the "politically correct" names for these) have an extremely
> small customer base, and can basically be ignored for any practical
> purposes.  Now, that means that the USG de facto has the control
> over the DNS name space.  From this fact, Michael concludes that the
> USG has a duty to apply due process for its handling of this public
> ressource - instead of creating a "private" de-facto monopoly on the
> root zone market, which shows precisely the kind of behaviour you'd
> expect from a monopoly.

I reiterate the argument that we are not discussing resources here. However,
I do agree that we need a taxonomy that makes sense.

names := abstract concept
zone server := resource

The biggest problem, over the years, is the confusion of the subjects and
the contextual referents of the objects. Clarity is not served.

> (Of course, the actual question to be answered is how this monopoly
> can be fixed or brought under control.  Would competition help?  Or
> couldn't it persist on that market?  What kind of control mechanisms
> should be established so the single player in that market is forced
> to take into account public interest?)

Therein lays a very interesting discussion. But, we've had the monopoly warz
as well. They were also inconclusive, mainly due to this same lack of
clarity.
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Date: Tue, 17 Apr 2001 12:15:45 -0700 (PDT)
From: technizmo <[email-masked]>
Subject: Re: [ga] Re: iCANN's protection

>--- Dave Crocker <[email-masked]> wrote:
>>At 03:07 AM 4/17/2001, DPF wrote:

>>Difficult to understand though is in the eye of the
beholder.

>In fact that is not correct.  There are plenty of
objective and valid 
>ways to assess comprehension difficult.  It is easy
enough, in fact, that 
>Microsoft Word has a tool for assessing readability.

Comprehension does not equal readability.  Also, both
comprehension and readability are subjective.  The
fact that there are many different ways to assess
comprehension illustrates the measurement's
subjectivity.  Which type of assessment a person uses
to measure readability or comprehension is based upon
personal bias.  For example, a person may believe that
counting the average number of syllables per word and
words per sentence (a la MSWord) in a document is not
a good way to determine readability or comprehension.
Issuing a blanket statement that something is
'difficult to understand' can only be taken as a
personal opinion (hence 'eye of the beholder'), as not
all people nor all measurements of comprehension will
agree on that point.

>>>Prof. Froomkin's biases are clear and consistent. 
He seeks to criticize
>>>ICANN.  He seeks to do it vigorously and at every
turn.  His motives might
>>>be less clear, though the instant he starts getting
public exposure for his
>>>efforts, then it is clear that he is serving to
promote his career.

>Prof. Froomkin seeks ONLY to criticize and he
manipulates facts towards his 
>arguments.  That is called "not playing fair".

Since you admit that you cannot determine the motives
for Prof. Froomkin's actions, it is illogical for you
to conclude that he "seeks ONLY to criticize."  You
have no idea what it is he seeks to do.  It would have
been more apt to say that Prof. Froomkin's past
opinions have been critical of ICANN, as they have
been documented.  No one knows whether his next
opinion will be critical or congratulatory.

Criticism and the inclusion of facts to support such
argument are essential in an opinion paper.  To use
such dastardly techniques in composing one is not only
'playing fair' but is necessary.

The fact that Prof. Froomkin has been solely critical
of ICANN in the past only shows that his position has
not wavered over time.  It is not a determinant of his
future actions.

>1.  A constructive participant is not ONLY a critic. 
A constructive 
>participant shows behavior that is contingent.  The
positions they take 
>depends upon the matters under discussion.  If they
only attack and 
>never support, they have some agenda other that
constructive participation.

Wrong.  You are speculating on a person's motivation
and future actions.  Also, it is not a requirement
that a person's positions be on the whole
compromising in order to be constructive.  It is only
a requirement that one should respect other positions,
not that one should be 'wishy-washy' with his/her own,
in respect to different issues.

- -jason graff

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Date: Tue, 17 Apr 2001 12:28:48 -0700
From: Dave Crocker <[email-masked]>
Subject: Re: [ga] Re: iCANN's protection

At 10:39 AM 4/17/2001, Thomas Roessler wrote:
>he is putting forth legal arguments,
>which aren't shared by all of his colleagues (which is not a
>miracle, of course, since folks in that profesison hardly agree on
>anything ;-)

In fact lawyers tend to agree about basic matters of law most of the 
time.  When they disagree is when they are explicitly adversaries.  Lawyers 
are trained to seek whatever lines of argument will support their 
client.  However when they are not in the middle of a direct fight, they 
generally agree on matters of legal principals, and legal practise.

None of that every guarantees how a particular judge or jury will determine 
a particular case, but discussions like that being pursued by Prof. 
Froomkin pertain to overall patterns of legal practise.  About such 
matters, lawyers tend to agree more than disagree.

>Don't you think that one and the same person can be polemic and
>objective about the same topic (or related topics), when dealing
>with them at different opportunities?

Are there people who demonstrate such a separation?  Sure.

Prof.  Froomkin is not one of them, although he is quite aggressive about 
pretending that he does.

>Don't you think that one
>person can put up a polemic opinion piece for political debate on a
>web site, and write a high-quality research paper for an academic
>journal on a related topic?

In point of fact, people who are seriously concerned about maintaining a 
serious level of "independence" and "objectivity" do NOT publish such polemics.

>Michael doing something like that is not so much different from Dave
>Crocker writing this:

Actually, it is quite different.  I pointed to a behavior of mine that was 
not consistent with a particular bias being asserted of me.  That is 
different from claiming that I am objective.  Very different.

>Now, that means that the USG de facto has the control
>over the DNS name space.  From this fact, Michael concludes that the
>USG has a duty to apply due process for its handling of this public
>ressource - instead of creating a "private" de-facto monopoly on the
>root zone market, which shows precisely the kind of behaviour you'd
>expect from a monopoly.

"due process" has many forms.  The IETF embodies one of them, as does 
ICANN.  Of course some folks like to claim otherwise, most tending to 
believe that only the US Government form of due process is valid.

>(Of course, the actual question to be answered is how this monopoly
>can be fixed or brought under control.

The latter presumes that it is "out of control".  That's a major assumption.

"Fixing" on the other hand, is an on-going process, experienced by all 
organizations, and required for them.

d/

- ----------
Dave Crocker   <mailto:[email-masked]>
Brandenburg InternetWorking   <http://www.brandenburg.com>
tel: +1.408.246.8253;   fax: +1.408.273.6464

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Date: Tue, 17 Apr 2001 13:10:54 -0700
From: "William X. Walsh" <[email-masked]>
Subject: Re[2]: [ga] My policy on postings - and slurs

Hello Roeland,

Tuesday, April 17, 2001, 10:32:33 AM, Roeland Meyer wrote:

> I might point out that this entire message is an ad hominem attack against
> Dr. Froomkin. From the most highly regarded disciple, who preaches against
> the ad hominem attack at every opportunity. In fact, he is making this
> attack under the guise of preaching against ad hominem attacks?!?!

> BTW, I find nothing wrong with Dr. Froomkin publishing his killfile list. It
> is most enlightening to see whom he does and does not listen to.

Oh please.  It was entirely inappropriate and inflammatory.

Dave was right for once.

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 William                            mailto:[email-masked]

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Date: Tue, 17 Apr 2001 22:24:46 +0200
From: Thomas Roessler <[email-masked]>
Subject: Re: [ga] Re: iCANN's protection

On 2001-04-17 12:28:48 -0700, Dave Crocker wrote:

> In fact lawyers tend to agree about basic matters of law most of
> the time.  When they disagree is when they are explicitly
> adversaries.  Lawyers are trained to seek whatever lines of
> argument will support their client.  However when they are not in
> the middle of a direct fight, they generally agree on matters of
> legal principals, and legal practise.

While they may actually agree on the most basic legal principles,
there is certainly and regularly disagreement about interesting, or
novel questions, which may indeed be argued in different ways or
directions, and where arguments may have to be balanced in court.

Otherwise, there wouldn't be so many cases which are pursued up
until the highest courts, even when both parties have similar
material means and expertise on their sides, right?

> None of that every guarantees how a particular judge or jury will
> determine a particular case, 

Of course not.

> but discussions like that being pursued by Prof. Froomkin pertain
> to overall patterns of legal practise.  About such matters,
> lawyers tend to agree more than disagree.

ICANN looks like a rather new construction, which seems to be
difficult to classify and treat from a legal point of view.  Thus,
I'd actually be quite surprised if there would be no disagreement.

>>Now, that means that the USG de facto has the control over the
>>DNS name space.  From this fact, Michael concludes that the USG
>>has a duty to apply due process for its handling of this public
>>ressource - instead of creating a "private" de-facto monopoly on
>>the root zone market, which shows precisely the kind of
>>behaviour you'd expect from a monopoly.

> "due process" has many forms.  The IETF embodies one of them, as
> does ICANN.  Of course some folks like to claim otherwise, most
> tending to believe that only the US Government form of due
> process is valid.

Writing from the other side of the Atlantic, I don't belong to the
latter group.  

However, I notice that ICANN has a number of bad habits which can
hardly be considered due process - just think about the extremely
late publication of important reports or drafts, or think about the
frequent changes to the bylaws.

As you wrote yourself various times in connection with the Verisign
agreemnet, ICANN has to operate like a corporation does.  There is
certainly a tension between this requirement and the requirement for
due process as seen from a public policy point of view.  

This is worsened by the fact that ICANN is in fact a monopoly on an
apparently interesting market.  This implies that the natural kind
of control over corporations acting in a competitive environment -
namely, market forces - does not exist with ICANN, and must be
substitued for.  Obviously, ICANN's board can't reliably control
itself by design, since it has an obligation to foster the
corporation's interests, which may at times differ from public
interest.  Thus, external control must be exercised over (actually:
forced onto) the corporation.

Of course, the US constitution's idea of due process is just one.
However, it's one with which a lot of experience has been gathered.
ICANN's kind of process is novel, and can obviously be improved.

>>(Of course, the actual question to be answered is how this
>>monopoly can be fixed or brought under control.

> The latter presumes that it is "out of control".  That's a major
> assumption.

The question is actually not whether or not ICANN is "out of
control", but rather WHO controls the organization, and who should
control it.  You may read my note above as saying that I believe
that ICANN doesn't experience the kind of poublic control I would
consider necessary and appropriate.

> "Fixing" on the other hand, is an on-going process, experienced by all 
> organizations, and required for them.

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End of GA-DIGEST V1 #400
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