Esther Dyson's Response to
Ralph Nader's Questions
15 June 1999
Esther Dyson's Response to Ralph Nader's Questions
June 15, 1999
Dear Ralph and Jamie:
Thank you both for your letter of June 11. The questions you ask are legitimate, and we have legitimate answers to them. What is illegitimate is the motivation of some of the people who keep asking the same questions without paying attention to the answers.
I hope that my answers below will respond to your concerns. Indeed, I hope that they may persuade you to join us in our fight to remove monopoly from the business of registering domain names and help keep the Net free for small businesses and individuals to use as they see fit. As a longtime champion of individual rights and against monopolies, you hold common cause with us.
Accordingly, I'd like to start by setting some context before answering your specific questions. My response is intended not as an attack against anyone, but as a defense against attacks which are hindering us at ICANN from doing the tasks for which we were created.
As it happens, I'll be in Washington today (Tuesday), and I'd be happy to meet with either or both of you. Please let me know by e-mail or by calling my office at (212) 924-8800. You can also reach me later this afternoon at (202) 979-3863.
I'd like to set the scene for the answers to your questions by noting that ICANN is a newly minted organization with many of its organizational processes still under way. It was created primarily in response to the Internet's extraordinary growth, which required a transition from informal management of its technical infrastructure, to something more formal and predictable, and subject to public (but not directly government) oversight.
The Initial Board is following the guidelines set forth in the United States Government's policy paper of last June (the White Paper), as further amplified by the Memorandum of Understanding/Joint Project Agreement ICANN signed with the Department of Commerce in November. These documents comprise an agenda both important and ambitious, and we are doing our best to work our way through it with the help of public input, several formal advisory committees, and the so-called Supporting Organizations that make up ICANN's internal structure. We welcome your input, both now and in the future.
The White Paper articulates no Internet governance role for ICANN, and the Initial Board shares that (negative) view. Therefore, ICANN does not "aspire to address" any Internet governance issues; in effect, it governs the plumbing, not the people. It has a very limited mandate to administer certain (largely technical) aspects of the Internet infrastructure in general and the Domain Name System in particular.
One important aspect of its mandate is the introduction of competition into the business of registering domain names, under an agreement with the US Government. In this particular task, naturally enough, it is meeting fierce resistance from the private government contractor that has been the monopoly provider of DNS services, Network Solutions -- a company that has transformed itself from an unknown start-up at the time (1992) when it first entered into a contract with the National Science Foundation, into a subsidiary of a large privately-owned government contractor today, with a market value of over $2 billion for its own publicly traded stock [NSOL]. Given this history, and the wealth that has been created through its administration of those government contracts, NSI is in no hurry to see that monopoly eroded. Since this very goal is a principal short-run objective of ICANN, NSI has apparently concluded that its interests are not consistent with ICANN's success. Thus it has been funding and otherwise encouraging a variety of individuals and entities to throw sand in the gears whenever possible, from as many directions as possible.
Of course, "I want to protect my monopoly" is hardly an attractive slogan, and so NSI uses the language of democracy instead. In addition, it encourages and supports others who have a variety of reasons economic, philosophical or political to be unhappy with the way the community consensus has formed. Of course, many of these people are sincere in their concerns about the transparency of ICANN's operations and their interest in fostering public debate about its activities - as you are. But ICANN's goals and its actions are in fact the result of public debate and consensus - though not of unanimity.
NSI's rhetoric is also quite inconsistent with its conduct. The company operates under the cloak of nondisclosure agreements covering not just technical and commercial information, but also the experiences of the ICANN-accredited registrars now attempting to open up the domain-name registration business to competition. Furthermore, Network Solutions claims "proprietary" rights in databases and techniques developed under government contract as a reason for refusing to release information and for expensive license fees. The nondisclosure agreements it imposes on competing registrars are so onerous that many who wish to participate in ICANN's competition initiative cannot do so without permanently restricting their ability to compete in this space in the future.
Forgive this lengthy preamble, but I wanted you to understand the origin of many of the complaints you have been hearing - basically, the effective PR of a monopolist seeking to postpone the inevitable arrival of competition fostered by ICANN. Since you have not been actively involved in this project over the several years it has been underway, you may not appreciate the power struggles involved…but given your long history of fighting monopoly power, I thought it was important to provide you with some background.
Now of course, there are many participants in this debate who are not NSI agents, and who have honestly differing views about particular issues. Since ICANN is a consensus, non-governmental body, we are charged to listen to all such views and debate them, and eventually we reach a consensus position. As a non-elected initial board, we take this duty very seriously; our method is to foster and then recognize consensus rather than force it. This has certainly been the case to date: Every policy developed in ICANN has been the product of a comprehensive notice and comment process, and every effort has been made to reflect in ICANN policies the consensus position to the extent we can determine it. Of course, consensus is not unanimity, and there are people of good faith who disagree with certain specific ICANN policies. We try hard to explain the reasons and trade-offs for each decision. In the end, we realize we can achieve legitimacy only if a substantial number of those affected agree that we are making the right compromises most of the time. (I myself do not agree with every facet of every ICANN decision, which is why ICANN has a board and not just a chairman!)
With this background, let me try to respond to your specific questions.
On the intellectual property issues, in its White Paper the Department of Commerce requested the World Intellectual Property Organization to conduct a study for submission to ICANN concerning how to operate the domain name system so as to minimize conflicts with trademark laws throughout the world. These issues include the need for and scope of alternative dispute resolution mechanisms that could work despite the varying legal regimes that control the use and protection of trademarks and similar intellectual property on the global Internet; the desirability of special rules for so-called "famous names;" and the intellectual property issues raised by the possible addition of new Top-Level Domains (beyond .com, .net and .org). WIPO led a 10-month study, held 15 public meetings with more than 1300 participants, and ultimately produced a set of recommendations that it transmitted to ICANN this April.
At its meeting in Berlin in May, ICANN considered the WIPO report and recommendations, and the many public comments (both online and in-person) about them. Ultimately, the Board endorsed WIPO's call for consistent administrative dispute resolution procedures in principle, and referred that recommendation to its newly formed constituent unit, the Domain Name Supporting Organization, for its review and specific implementation recommendations. It also referred most of the rest of the report to the DNSO for further study, without endorsing a particular direction. (And it noted that it had already implemented some administrative recommendations, concerning prepayment and contact information, in its standard registrar contract.)
The DNSO's input will also be fully subject to the ICANN notice and comment procedures before ICANN's next full-scale meeting in August, where the board will once again consider them in the light of public comments and look for consensus before deciding whether and how they should be implemented (or modified).
On the root server system, the White Paper called for improvements in the system and ICANN has formed a committee of experts to look into that complex subject. The committee has provided reports on its work at each of the last two public meetings, and has ensured that the system does not face Y2K vulnerabilities At this moment, ICANN does not control the root servers, although it expects to do so by the end of the transition period. In the meantime, ICANN is continuing to administer TLD assignments and related root server policies in the same manner as they were managed by Dr. Jon Postel before ICANN was formed. Any policies relating to the root servers under ICANN oversight will, of course, be subject to the standard notice, comment and consensus procedures that precede any ICANN decision that could significantly affect the Internet.
ICANN is a private organization; its actions are fully subject to legal review and oversight. Thus, if any action is believed to impair some legal right, a complainant would have full recourse to any relevant court. In addition, ICANN has a fully developed reconsideration procedure, and is in the process of establishing an Independent Review entity to evaluate any claim that ICANN has acted inconsistently with its Articles or Bylaws.
The White Paper assumed that, since the private non-profit organization it called for (now ICANN) would not be funded by governments, it would have to be funded by by the beneficiaries of its technical and policy development activities. Since it is still very early in ICANN's existence, and we have no experience to determine the level of resources necessary to carry out its duties, ICANN has (again, after a full process of notice and comment) established a fee not to exceed $1 annually per name registration which fee would be paid by the business entities actually making the registration. (You asked by what authority we will charge the fees; we will do so in accordance with a contract that we will execute with each registrar - a group that we still hope will soon include NSI.)
Since ICANN seeks only to recover its costs, we believe the $1 fee will be adjusted downward as the early organizational expenses are gradually reduced and as the number of names registered increases. In addition, if ICANN succeeds in fostering competition in the registration process, it is likely that the overall consumer price of registrations will come down dramatically. Currently, it is set unilaterally by NSI at $70 for a two-year registration (NSI does not permit one-year registrations). A competition-spurred reduction would lead to a substantial net consumer benefit due to ICANN's activities.
Finally, ICANN's activities are strictly limited by its Articles and Bylaws, and any fees it collects can be used only to offset the costs of these specific activities. Since ICANN is intended to be a 501(c)(3) tax-exempt organization, it is also limited by IRS regulations in any expenditure of funds aimed at influencing legislation. If you would like additional details on the expenses we foresee for the fiscal year beginning July 1 (just under $6 million), you can find a comprehensive budget document posted at our Website for public viewing.
Finally, I would like to consider your question whether ICANN's "interim" Board is making policy decisions it should not be making. First of all, on semantics: NSI has promoted the notion that ICANN somehow has violated the White Paper by having an "initial" Board rather than an "interim" Board. This argument is pointless. The White Paper calls for the consensus entity that became ICANN to "appoint, on an interim basis, an initial Board of Directors (an Interim Board)" (emphasis in original]. This "initial" Board was to serve until it established "a system of electing a Board of Directors." Thus, the terms "initial" and "interim" were clearly synonymous in the White Paper.
More importantly, the White Paper made it absolutely clear that the Board (whatever it was called) should deal with a variety of substantive policy issues in addition to establishing the procedures and structures necessary to create an elected Board going forward. The White Paper specifically called on the "initial" Board to formulate the necessary consensus policies to allow competition to be introduced as quickly as possible. These policies included "qualifications for domain name registries and domain name registrars" and "policies for the addition of TLDs." Finally, in the White Paper, the United States government said it would ask WIPO to "develop a set of recommendations for trademark/ domain name dispute resolutions and other issues to be presented to the Interim Board for its consideration."
The current Board, which I assure you would very much like keep its tenure as short as possible consistent with doing its duty, has undertaken no policy initiatives not expressly contemplated in the White Paper, or for which there was not some urgency of action necessary to meet the principal objectives of the White Paper and of ICANN itself.
Having said all this, I would like to mention that we have made significant progress toward a fully elected Board. The first of the three Supporting Organizations responsible for electing nine of the 19 Board members is now in existence (the DNSO), and we expect it to provide its three Directors soon. The other two SO's are currently organizing themselves, and we hope that they will provide their three Directors each by early next year. ICANN's Membership Advisory Committee has presented recommendations to the ICANN Board dealing with the establishment of the At Large membership that will elect nine Directors, and the ICANN staff and counsel are currently figuring out how to implement them. This latter effort has proven complicated, since it is critical that the membership and election process that will produce fully half of the Board be fair, open, resistant to fraud or capture, and as widely inclusive of the full range of users and others affected by ICANN policies as possible.
Thus, we have made much progress on many fronts, thanks largely to enormous volunteer contributions of many, many people, from Directors (who are not compensated other than out-of-pocket expenses and cannot be elected to the Board for two years following their current service) to hundreds of individuals and entities that want this unique process to work. Our work has, however, been made much more difficult by the direct and indirect opposition of NSI, the primary entity that stands to gain from such delay. I suppose this is an understandable approach for a monopolist threatened by new competition, but it is still disappointing, to me and to the Internet community as a whole.
It would have been much simpler, and a lot more pleasant, to have seen NSI work with the rest of the community to make this obviously necessary transition to open competition and policy-based management of the Internet's vital technical infrastructure. Still, we will persevere, and we will succeed. I hope this is responsive to your questions. Perhaps you could help us to generate even more momentum behind the forces of Internet competition and move away from monopoly as quickly as possible. We would greatly appreciate your assistance in this effort. If you have further questions, please call on me, our Interim President Mike Roberts, or our Chief Counsel Joe Sims. We would be glad to try to answer them at your convenience and to gain your understanding and support.
Interim Chairman, Internet Corporation for Assigned Names and Numbers (ICANN)
Link to Questions posed by Mr. Nader and Mr. Love http://www.icann.org/correspondence/nader-to-dyson-11jun99.htm
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