Dialogue with the ICANN North-American Candidates

October 2, 2000

Ames Courtroom, Harvard Law School

I. This is Internet & Society 2000 class, open to the public.

A. Informal.

B. This evening is formal Candidate Forum (7:30pm).

II. Description of tech

A. Webcast to online folks.

B. Chat rooms (small groups)

C. Remote question-asking

D. Questions from students

III. Introduction by the Candidates – How did you come to be sitting here today?

A. Tiller (Prof, U Texas School of Business): Began involvement with ICANN when learning about the UDRP.

B. Simons (prior President of ACM): Generally interested in technology policy. Started ACM’s technology policy committee. Future of the Internet is at stake. Afraid that Internet will go the way of radio – opportunities may be lost if we make the wrong decisions.

C. Miller (President of Information Technology Association of America): Coordinating many member companies is a challenge. Stresses cooperation. In 1997, cosponsored a conference about transition of DNS to private sector. Testified to Congress about ICANN several times. Approached several months ago to run for ICANN office. This is a weird process (don’t know electorate, don’t know who is actually registered, etc.)

D. Lessig (Prof, Stanford): Involved since July of 1998 when helped coordinate Berkman Center work with what became ICANN. Participated in International Forum on the White Paper meetings held around the world. Interested in seeing that ICANN be consistent with objectives specified by IFWP process. IFWP process hijacked; was critical of ICANN; attacked for that position. Still concerned about ICANN’s direction – changing number of At Large Directors, advancing a particular view of intellectual property. Was nominated by ICANN (“bizarrely”) and agreed to run. Intend to prevent capture.

E. Chapin (BBN Technologies): BBN invented much of the Internet. Wrote commercial TCP/IP code in 1970’s; chaired Internet Architecture Board. Share many of Lessig’s concerns. Would be a tragic loss of opportunity if ICANN went awry. Interested in being more specific re definition of “Internet Community.” Looking forward to exploring those questions.

F. Auerbach: “I’m not wearing a tie; I’m a techie.” Internet Community is everyone who will be affected by the Internet, not just people with something to sell. Been on the Internet since 1974; have started several companies, some of them acquired. Now work at Cisco. Intend to make network components easier to operate. Value intellectual property, but it must be balanced against other needs. Business interests don’t supercede all other needs. Asked by Postel to be on Internet Ad Hoc Committee. Helped found the Boston Working Group.

IV. Biggest thing wrong with ICANN today? How to fix it?

A. Chapin: ICANN hasn’t been sufficiently transparent. Can’t tell whether ICANN is even operating consistently with its own bylaws.

1. Possible to have too much transparency?

· Sometimes, need at least some delay.

B. Simons: Process and procedure. People need adequate time to make comments.

C. Karl: ICANN is to be a “representative government.” Have to be able to see into minds of ICANN directors. Need to know who votes for what. Without transparency, no accountability.

1. Favor a rule saying “ICANN Directors should have special inboxes and outboxes, and all messages in those mailboxes are publicly-archive.”

· Sure, why not?

2. Including correspondence with lawyers?

· Only negotiation of contracts should be redacted (and made public later), and matters re personnel.

D. Lessig: Who can be against participation? But ICANN has to remain focused on its commitment not to be a policy-making body, only to focus on coordinating technical standards. ICANN has no sanction to make certain policy decisions, like imposition of UDRP which requires that everyone who registers any domain name to buy into ICANN’s view of intellectual property. ICANN must make sure it doesn’t take sides on these kinds of questions. Can’t make these decisions until ICANN truly has a sanction to speak for the Internet community. For now, focus on not becoming a policy-maker.

1. Too much weight given to trademark interests.

2. First priority should be that ICANN not work as a governing body. See Froomkin paper – ICANN might be illegal in the US, which would prevent use of ICANN as a facilitator of technical standards.

E. Miller: Lessig speaks nonsense. ICANN is doing a pretty good job, and I don’t intend to rip it up in the course of running for office. Is ICANN attempting to, and succeeding in, getting in broad-based input, then making decisions based on that input? They may not be doing a good enough job of developing consensus, but decisions still need to be made. ICANN has made some mistakes, and improvements can be made. But it’s not in order to accuse ICANN of being illegitimate. Some folks will always be unhappy. But this is no cult hiding behind closed doors. Failure to make decisions is a decision.

F. Tiller: At Large Membership may be subject to capture. Some interests are already “hard-wired into ICANN” via organizational structure (see http://www.icann.org/general/icann-org-chart.gif ). Need to make sure At Large Membership doesn’t get captured since At Large is supposed to be a “check” in this system of checks and balances.”

1. How to fix?

· Informational campaign. Make registration and other participation easier. People couldn’t figure out the process. Need to simplify.

V. …

A. Auerbach: There are legitimate opportunities for technical management. But ICANN instead focused only on (what I consider) policy.

B. Tiller: Distinction between “technical” and “policy” choices is unclear. All technical decisions do have policy implications. Recognize as much.

C. Lessig: “Miller’s agreement with my position was nonsense.” ICANN can facilitate participation by more users – Berkman Center deliberative polling plans, perhaps. Kapor previously recognized that technology implements policy. There’s no avoiding it. For example, should continue the “policy decision” of “end to end” flow of IP packets. Saying “let’s become policy-makers” may be an excuse for making decisions ICANN has no legitimate basis to make.

D. Simons: Agree with questioner that ICANN’s decisions have widespread impact. But realize that whichever of us may be elected to the Board will still only have a single vote. Question of what changes any of us could realistically hope to make. Must consider political realities.

VI. Two models of governance: Representation (“I have a constituency; my job is to represent them, and to stand in for their interests, while other representatives advocate other interests”) versus trustee (“I am here to think hard, to make good decisions, and to do ‘the right thing’”). If elected, would your job be to represent some particular group, or to “do the right thing”?

A. Chapin: Every Director on the ICANN Board “should” view his role according to the “trustee” model.

B. Tiller: North American representative has to be an advocate for the user community, not just a trustee.

VII. Katherine Porter: How does consensus emerge?

A. Auerbach: Often the person purportedly measuring consensus fails to do so accurately.

B. Miller: Get as many people informed about the issues as clearly as possible. Similar technique used re how to resolve Y2K problems. Sometimes decisions just have to be made, one way or another.

C. Chapin: Katherine means “If ICANN doesn’t set transnational Internet policy, then who will?” I can imagine ICANN developing to play that role, but at the moment it lacks such a mandate. Might want ICANN to be different than it is right now.

D. Auerbach: Forum for creating policy within ICANN is DNSO. Individuals are not allowed to be members of DNSO Constituencies. (But allowed in general assembly and in working groups?)

E. Simons: Artificial scarcity need not exist.

VIII. Can imagine ICANN asking undemocratic or otherwise not transparent. Are there ways to hold ICANN responsible for its actions if it comes to that? (Lawsuits?)

A. Lessig: This was a core question of debate at formation of ICANN. At Large structure to be a path for individuals to bring ICANN back to its charter if necessary. There are also various internal review processes. (Independent Review – http://www.icann.org/indreview , and Reconsideration http://www.icann.org/general/reconsideration.htm)

B. Auerbach: California grants rights to members under law. ICANN has made great efforts to avoid those laws.

C. Simons: Some advocate destroying ICANN. But what came in ICANN’s place could be worse (i.e. WIPO). So while we’re concerned about lack of democratic processes in ICANN, it may be better to work within the system, at least for now.

D. Miller: Don’t want a panel of federal judges running ICANN. ICANN should continue to develop consensus, find non-legalistic ways of solving problems (UDRP is basically working OK, perhaps some tweaks to be made). ICANN is a reasonable model for solving a complex problem. Lawsuits are OK for those who are so inclined, but we really don’t want judges in control.

E. Auerbach: Could have infinite number of domain name systems.

1. Zittrain: No law prevents that.

2. But ICANN says in its contracts that it won’t acknowledge same, i.e. won’t grant gTLD applications from those who are too closely tied to alternative DNS.

F. Tiller: ICANN consistently reminds people that they’re “just” making “technical decisions.” Needs internal appeals mechanisms to make its decisions consistent. (See Independent Review – http://www.icann.org/indreview , and Reconsideration http://www.icann.org/general/reconsideration.htm)

G. Lessig: Problem with UDRP is not particular decisions. It’s the concept of using a single solution across all TLDs. Need a narrower conception of “policy-making” or “governance.” If UDRP is a good idea, then TLDs will select it on their own.

1. Zittrain: Race to the bottom?

2. Lessig: Not if ICANN holds TLDs and registrars responsible. Then those who are upset have other channels of recourse.

IX. What happens if ICANN wants to impose its policies on governments?

A. Auerbach: Disconnect between US Government and ICANN. US DoC said “no intention of transferring policy controls” to ICANN? Decisions must have broad-based support so that various nations immediately realize that decisions are inherently reasonable and therefore effectively require support. “Fading of nation-state … replacement with overlapping sovereignty.”

B. Miller: Congress is following this process. Previously Congress seemed ready to blast ICANN out of the water. But just before the hearing, ICANN announced policy changes. (Recording and pictures from hearing at http://cyber.law.harvard.edu/icann/events )

C. Simons: New US laws are much tougher than UDRP. This can happen if governments are convinced that an ICANN decision is bad. These are serious political issues.

X. Internet becoming like radio? But radio provides content for free to an audience of millions? What’s wrong with that? What vision of the Internet (and ICANN) is so different than that.

XI. ICANN sent an email noting that preregistrations in proposed new TLDs are not in order now. What’s wrong? http://www.icann.org/announcements/icann-pr29sep00.htm

A. (Edelman: Names Council acted in its teleconference earlier in the week.)

B. Auerbach: The announcement was not in order, and was not based on consensus.

C. Lessig: Grand visions for radio were not realized. Must preserve what’s great about the Internet. ICANN has a “potentially harmful” role here. To the extent that ICANN becomes useful to those with particular interests, ICANN may be a danger (i.e. if captured by such interests).

D. Miller: There’s money involved, to the tune of billions of dollars. Many of those talking about principles really “just” want to make a lot of money.

E. Zittrain: Many companies are applying for TLDs. ICANN will only approve some applications. “Consumer rip-off” to take people’s money before registrations are assured.

F. Simons: Radio was to allow anyone to be an information provider. To be non-commercial. But US regulations in the 1920’s-30’s “tamed” radio and commercialized it.

G. Tiller: New TLDs may be worth millions or billions of dollars. Are giving away these valuable resources. Why not auction the domains?

1. Edelman: Note that application fees are not the only fees to be paid. Also ongoing operation fees to be paid by all gTLD

XII. Funding for ICANN?

A. See text notes.