From: Jeff Williams <jwkckid1@ix.netcom.com>

To: NTIADC40.SMTP40("list@ifwp.org")

Date: 10/10/98 3:15am

Subject: Re: [ifwp] Re: Let's move on (was:Re: Sept. Berkman Ctr mtg cancellation)

Mikael and all,

Mikael Pawlo wrote:

> I feel like I'm wasting my weekend with this discusssion, but I will at

> least make one more post to clearify my position in this matter.

I would like to speak for our organization and say the we are pleasedto say

that we appreciate and admire your participation and hope that you continue to

participate in your usual constructive manner in the future.

>

>

> On Fri, 9 Oct 1998, Michael Sondow wrote:

> > > I don't know you, nor do I know the folks at the Berkman Center. I

> > > actually hardly know anyone in the IFWP process and I have no good name

> > > in this matters. But still I have a point of view, maybe not as

> > > articulated as yours, but it is my point of view.

> > Has anyone ever suggested you don't? Certainly not I.

>

> No, but in some postings lately someone proved that 17 individuals account

> for approximately 91 percent of all postings to this list. I guess these

> 17 individuals claim they have something more to give the process than

> others, otherwise they would hardly take up so much of the debate arena.

> Since I'm not among these 17 persons, but you are Mr Sondow, I just wanted

> to stress my right to have a say in this matter - as well as the

> self-choosen 17 individuals.

I don't look upon myself as "Self-Choosen" to be sure. I am simply

representing

as spokesman for our organization on these matters. As far as I can ascertain

none of the 17 in that list is "Self-Choosen" either.

>

>

> > > The Berkman Center as well as loads of other prominent and well-educated

> > > people and organizations did put in a lot of time and effort to make the

> > > IFWP work.

> > Well, it hasn't worked. Not yet, at any rate. Not until there's a NewCo

> > with a popular structure and members.

>

> But you can hardly blame the Berkman Center for this. I attended the

> meeting in Geneva and I found it quite clear that the present part

> of the Internet community and Internet stakeholders wasn't doing much to

> reach consensus.

We would have to say that this is an accurate statement on it's face to be

sure.However we believe that we have compromised on several central points as

have

some others. But the biggest players (NSI and the IANA) seem to have little

interest

in the broad stakeholder community's ideas and considerations.

> If one party says A and the other party says C you might

> reach consensus at B. In Geneve the party stuck to their initial

> standings, and if you're not ready to compromise, you can never reach any

> agreements. That's one of the fundamentals of negotiation.

Agreed. Yet even NSI was willing to conceed originally to a Initial

MembershipOrganization. The IANA has not and it appears will not concede to

that

fundamental point that seems to have broad consensus.

> I say we move

> on, and not waste more time looking back. For example - how do you want

> the board to constructed to satisfy your neeeds?

That question has already been answered. The Initial board must beelected by

a Initial Membership Organization. The fact that the IANA

is not willing to concede this fact does not diminish it as a fact.

> Do we have consensus on

> this list for your suggestion? Fine - then let's do some serious lobby

> activity to gain support in the rest of the Internet community. Throwing

> dirt at the Berkman Center won't do you, them, the IFWP or me any good.

Agreed, but denying already fairly well established facts by the Berkmancenter

and a few others doesn't either. It is a two way street.

>

>

> Lead, follow or get out of the way!

We believe that we have taken that lead. At considerable expense we have

hadour representatives crisscrossing the globe to drum up support and gather

ideas

that we have not represented in the draft we submitted to the NTIA, this list

and the US Congress, as well as the Presidents office. We have also publicly

announced that we are backing up our Draft Proposal or whatever Draft that

the NTIA or the US Congress determines is appropriate with a Self perpetuating

non-revocable trust fund currently holding approx. $25m and still growing. I

have

yet to see any other effort that can match this at the present time.

>

>

> > > Now it's time to look forward, and try to achieve the best

> > > possible solution out of results so far.

> > No, sorry, but not out of results so far. Out of the results we will

> > produce.

>

> So - produce!

As I have just restated, we have. >;)

>

>

> > > Let the historians discuss the

> > > past.

> > The past has become the present, and risks becoming the immediate

> > future, when Mr. Zittrain and others who have not had the courage to

> > stick by the IFWP come back here and begin making proposals. It's not

> > for us, who have stuck by the IFWP all summer, through thick and thin,

> > to ask what we can do for Jonathan Zittrain, who has returned here

> > because the IFWP looks likely to become again a force in this affair,

> > but for Jonathan Zittrain to ask what he can do for the IFWP.

>

> Zittrain never left the building, did he?

I personally don't know weather he did or not. I hear allot of ideas, some

goodand some besides the point from Mr Zittrain. I have yet to see any REAL

tangible support from the Berkman center, such as willingness to help

fund.

>

>

> Regards,

>

> Mikael

>

> _________________________________________________________________________

>

> mailto:mpawlo@algonet.se

> http://www.algonet.se/~mpawlo

>

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Regards,

Jeffrey A. Williams

DIR. Internet Network Eng/SR. Java/CORBA Development Eng.

Information Network Eng. Group. INEG. INC.

E-Mail jwkckid1@ix.netcom.com

CC: US commerce department <commerce@mail.house.gov>

From: Jeff Williams <jwkckid1@ix.netcom.com>

To: NTIADC40.SMTP40("list@ifwp.org")

Date: 10/10/98 10:44am

Subject: Re: [ifwp] Comparing Apples with watermellons

Eric and all,

Eric Weisberg wrote:

> Let me disagree with my friend.

>

> Peter Deutsch wrote:

>

> > Having not read every

> > draft of the ORSC proposal, I'll admit to being somewhat

> > surprised by the final list of changes they claim to have

> > made. In My Own Hunble Opnion, their procedure to produce

> > that document had remarkable parallels with what IANA did,

> > but (as with IANA) their doc has lots of good points.

>

> There is a fundamental difference between IANA and ORSC. One claimed to be the

> only process, the other merely made a proposal to be considered in the process.

THis statement is wholly true. The IANA decided to, for whatever reasonsto abandon

the IFWP process, as well ignore any other Stakeholders input

in an open, transparent, and fair process. This is indeed unfortunate, and history

will show that this has indeed occurred.

>

>

> It is the difference between the driver of the car refusing to let the passengers

> vote on where to go and a passenger in the back screaming that he wants to eat at

> McDonalds.. The person with his hands on the wheel is driving everyone in the

> car. The guy in the back is only speaking for himself. He does not need a

> democratic process to do that. IANA does not care about getting the consent of

> the driven. It just wants to drive where and how it wants to drive.

This is an accurate analogy as far as it goes, however it should also be

understoodthat the the ORSC proposal is not the only proposal on the table. THat the

IANA's,

BWG, or the ORSC's proposals meet the consensus of the IFWP process

conferences, the White Paper requirements, not the needs and desires of ALL

of the Stakeholders.

>

>

> __________________________________________________

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Regards,

Jeffrey A. Williams

DIR. Internet Network Eng/SR. Java/CORBA Development Eng.

Information Network Eng. Group. INEG. INC.

E-Mail jwkckid1@ix.netcom.com

CC: US commerce department <commerce@mail.house.gov>

Re: Comments on the Proposals for a New Corporation to Manage Internet Domain Name System Functions

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

 I have reviewed the submission of IANA, proposing the creation of a California Nonprofit Public Benefit Corporation, called "ICANN." In my view, the proposal is a substantial improvement over earlier drafts. And while I still have specific substantive reservations about the Corporation (which I outline in the letter that follows), as well as concerns about the procedure that has produced its design, I do believe that if the government insists upon modifications of this draft consistent with the objectives of the White Paper, it could provide the framework for a workable, and successful, governing body.

 My substantive reservations are three. I am concerned first, that the organization is not sufficiently accountable to the diverse interests that its actions will affect; second, that it does not sufficiently separate authority within the organization; and third, that it does not adequately assure openness in the procedures through which decisions of the board are made. I address each of these concerns below.

 Accountability

 
The ICANN draft is careful to assure that the final board remain responsive to the views of the technical community. It does this by establishing that 9 members of the board be appointed by Supporting Organizations, themselves representing, at their core, technical perspectives related to the management of the internet.

 This is a sensible structure. The architecture of the net is sensitive; maintaining and extending its design requires technical expertise; and to assure continued stability, the board will require ongoing guidance from technical communities.

 But ICANN will be more than a technical organization. Its decisions will affect far more than network engineering. And to assure that, in the long run, it remains responsive to the views of the internet community generally, it needs an outside check similar to the check of Supporting Organizations. Another perspective on the net ‹ a perspective to balance the perspective of the Supporting Organizations ‹ needs to have the same ongoing input into the decisions of the board. The review of the California Attorney General ‹ the only external check on the activities of this board ‹ is not enough.

 How that check might be crafted, however, is a hard question. Making ICANN a membership organization is one possible solution, though of course, that alone is no guarantee of its success. Structuring the proper balance of interests is a complicated process; and the board will need time to develop a sensible proposal. Others have suggested different structures to the same end‹my colleague, Charles Nesson, for example, has proposed a form of election to add a check to the board. But whether membership or election, we are both aiming at the same end: Some means to provide an on-going external check on the actions of the board, in the same way that technical interests, through the Supporting Organizations, do.

 I understand that some are concerned that any membership structure would displace Supporting Organizations, and thereby displace their technical expertise. But a membership organization could be structured to avoid this risk. As our Constitution protected the representational perspective of the Senate from the populist power of the House, so too could a membership organization insulate the Supporting Organizations from any interference by membership bodies. A membership organization ‹ or indeed, a membership Supporting Organization ‹ would be just one way of representing the interests of the net. It would not need to be primary, or foundational to all others, though it should have an equal role in selecting members of the board.

 The complexity of designing a membership organization, however, should not weaken the resolve to modify the existing articles to add some form of external accountability. And while the ICANN document has an aspiration that the Corporation move to a membership structure, it still requires that any amendment of the articles of incorporation obtain a 2/3 vote. Thus, the aspiration notwithstanding, the articles significantly entrench the existing structure, and make unlikely any permanent change.

 Consistent with the recommendations of the Boston Group, I would recommend that the entrenchment be reversed: That the articles require that the Corporation move to a membership organization within one year, unless two-thirds vote against that change. This way, if indeed it proves impossible to craft a membership organization, an escape is available. But by default, the board would be pushed to effect such a change.

 Separation

 One of the strongest aspects of the ICANN draft is Article V, section 8, which states:

 "Directors shall serve as individuals who have the duty to act in what they reasonable believe are the best interests of the Corporation and not as representatives of their Supporting Organizations, employers or any other organization or constituencies."

 This section recognizes that after representative bodies have nominated board members, these board members must be free to act as they, in good faith, believe serves the interest of the Corporation as a whole.

 The relationship between Supporting Organizations and the board, however, leaves open an issue that might work against the intention of Article V, section 8. In principle, a Supporting Organization could nominate officers from the Supporting Organization to serve as board members, and those board members would then in effect serve two masters‹the Corporation, and their Supporting Organization.

 This structural feature weakens the objective that the board stand independent of any "constituency." It is also easily remedied. To avoid conflicts in loyalty or perspective, I would recommend that the bylaws prohibit board members from simultaneously serving as officers of any Supporting Organization.

 Open Procedures

 The current draft of the ICANN proposal is strong in its aspiration to openness. Article III is a significant advance over earlier drafts, recognizing, though not as extensively, the important values that others, such as EFF and the Boston Group, have insisted the board embrace.

 One element of fair procedure, however, has been left underspecified in the present draft. This is the requirement that a decisionmaker give reasons for a particular resolution of an open question. Article III, section 3, paragraph (b)(iii) states that the board will publish "the reasons for the action." But this requirement applies only to policies that "substantially affect the operation of the Internet or third parties."

 In my view, the requirement should not be so qualified. While some issues will not be significant, the board should nonetheless be required to give reasons for a decision. This is especially true for a body without any clear political mandate for its actions. Like a court, the board will gain its authority by demonstrating its capacity not just to keep the system running (as IANA has done to date), but also by demonstrating its capacity for fairly considering, and resolving, policy disputes. A clear statement of its decision, and the reasons supporting that decision, is the surest way to earn that respect. It is also a check on the board˙s decisions, by requiring they suffer the test of giving reasons.

 ***

 As I indicated at the start, in my view the document is close to the objectives of the White Paper. Any mistakes in procedure that might have stained its development can, in my view, be cleared if the government now assures that the values of the White Paper are preserved. We should not forget that our own constitution was erected upon procedures themselves plainly unconstitutional. Madison˙s counsel then is still valid today: The test is what is produced, for only it can earn forgiveness for how it was produced.

 The government has an important role to play here. Its decision to pass-off to a private entity these as aspects of internet governance should not interfere with its responsibility to assure that the governing body it sanctions respect and protect values of the White Paper, and of free governments generally. I urge the government to bring this extraordinary experiment in "self-government" to a close by guaranteeing that the values of our government not get lost in this hand-off to private interests.

 
------------------------
Lawrence Lessig
Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal Studies
Harvard Law School
1525 Massachusetts Ave, G502
Cambridge, MA 02138
617.495.8099 (vx)
617.495.4299 (fx)
<http://cyber.law.harvard.edu/lessig.html>

From: Joop Teernstra <terastra@terabytz.co.nz>

To: NTIA.NTIAHQ(dnspolicy)

Date: 10/10/98 4:42am

Subject: Creating a new Internet Authority

Honorable William M. Daley

Secretary of Commerce

c/o Karen Rose

Office of International Affairs

Room 471

National Telecommunications and

Information Administration

United States Department of Commerce

14th and Constitution Avenue, N.W.

Washington, D.C. 20230

Dear Sir,

I speak my own opinion, but in this submission I wish to speak for many

ordinary holders of Internet Domain names.

My credentials are a law degree from a European university, an

Internet-dependent business that makes me an occasional domain name

registrant , a long standing interest in the DNS issues and a passion for

democracy.

I am a typical ordinary Internet user, neither and old hand engineer nor a

"newbie".

My economical interest is the stability and security of my virtual Domain.

I am not a citizen or a resident of the United States, but I realize that

the decisions of the United States government today can affect my future

business and life on line.

I am grateful to have had the chance to actively participate in the ifwp

process that you have created in order to mobilize people like myself.

I am grateful for the opportunity to comment on the proposals for a new

Authority structure that you are currently considering.

I have studied the diverse drafts that have been submitted to your office

and observed the way they have come about.

This is my endorsement of two of them.

1. In the event that political reality would dictate the IANA draft as a

point of departure I hope that you will favourably consider the amendments

of the "Boston Working Group", (See http://www.mama-tech.com/boston/) which

reflects a fair amount of consensus of the participants in the open

discussions of the ifwp process.

It is, in contrast to the 5th iteration of the IANA draft, the product of

an open process.

While I personally would have preferred Articles and Bylaws providing for

a full fledged membership organization with a guarantee for individual

membership, the time frame did not allow for the consensual creation of

such a comprehensive document.

2. The last product of the open process, built upon the consensus achieved

for the BWG draft and in many ways the result of cumulative improvements

on it, for which credit should go to the EFF, Bill Semich, the drafters

themselves and other contributors to the ifwp process, is the draft

submitted on October 9 , by Einar Stefferud and Dan Steinberg of the ORSC.

I would support this draft. It meets the objectives of the White Paper.

Compromise should make a merged BWG and ORSC document possible.

A membership structure is defined in the bylaws. Some discussion about this

structure would still be needed, but it is the only draft who does not

defer the creation of such structure to the (interim) board.

The Supporting Organizations do not elect the board, but the members do.

It contains the best language yet to guarantee due process, fiscal

responsibility and respect for the rights of individual Domain Name owners.

This submission is posted at:

http://www.ntia.doc.gov/ntiahome/domainname/proposals/orsc/bylaws.html

Articles of Incorporation at:

http://www.ntia.doc.gov/ntiahome/domainname/proposals/orsc/articles.html

Cover letter at:

http://www.ntia.doc.gov/ntiahome/domainname/proposals/orsc/articles.html

I wish to express my thanks to all who have put in unpaid hours of selfless

work to make these drafts and the volume of comments on them possible.

Long term stability of any Authority is dependent on the widest possible

base of its constituents.

Please oversee that the majority of the members of the Board of the NewCo,

or the directors of whatever structure that may finally win the day, will

be accountable to a broad internet community with the ultimate power to

vote them in- or out of office.

This would be your gift to the world.

Thank you for your consideration.

Joop Teernstra LL.M.

Democratic Association of Domain Name Owners

http://www.democracy.org.nz

"Towards a Bill of Rights for Domain Name Owners"

CC: NTIADC40.SMTP40("karl@cavebear.com","list@ifwp.org...