-- I'm only getting more and more confused and foggy

JZ ICANN--CARDOZO

-- I'm only getting more and more confused and foggy. I want to share some of my confusion and hope that you all can help me ease it. I have a sneaking suspicion over time that ICANN has been like looking for a lost ring under the street lamp, because that's where the light is best. And I'll unpack that a little more as we go.

I want to start just by thinking again about the title that Alan started me thinking about. The title, of course, of the conference is "ICANN CCTLD and the Legacy Route: Domain Name(?) Lawmaking and Governance in the New Millennium." It is extraordinary that we would gather together to be able to understand that title, much less talk about it. And this again, I think, is getting at the street lamp problem that I'm having.

But, first, let me think about the alternative title that Alan suggested, and then immediately stepped back from which I can be afraid, be very, very afraid. I don't agree with that. I'm not afraid of ICANN, though I am bemused by it in a sort of intellectual sense. I would sort of refine that to be, well, maybe be bored, be very, very bored. Not at this conference, per se, but of the entire workings. It really takes a sort of steal trapped mind that likes my ... (inaudible) to find this stuff interesting. I assume we all share that, unless we're here because we're getting class credit or something. So, we're all here, and we're not bored.

But, there is some problem in public outreach, right, to tell a developing country, the leadership of a developing country, that it better care about ICANN when it's just worried about getting the water running, much less the internet running, is a tough well. I would at least, if I had to title this thing, make it "Be Mildly Troubled: Be Somewhat, Somewhat Mildly Troubled." And I am somewhat mildly troubled about ICANN and I'm now going to explain why.

So, alright, the question that most of us have felt a need to take on during the session today so far, is why care? It's sort of some uncertainty as to whether we should care. And, I agree, this is a tough question. Here are some of the answers we've heard so far today.

So, first, is the CDT answer. The CDT answer is basically ICANN doesn't matter much now, but some day that ugly but harmless iguana can grow to become a fire-breeding, city-consuming dragon. So, don't be afraid of it as it is; it's just you're gong to turn around because you're bored. And when you look back suddenly you will be subject to ICANN and you will regret not having cared about it earlier. So, to put it into a less metaphoric pose, it's that ICANN does, or at least could exercise control over central internet functions that affect our lives. That's the worry. And I'd say that basically it's acting like a government answer. It's doing the sorts of things that typically government do. And, therefore, it had better be especially accountable to us, run according to methods that we care about. We don't just let it act like a black box, whatever it does it does, and let the market sought it out. That's the CDT reason, as I understand it, to care about ICANN.

Reason number two, which I would call for Legacy purposes, the network solutions answer. But, it applies equally well to register.com, and to anyone else who basically sees money to be made here and consumers to be served. And the NSI answer basically, as I remember, bemused ... (inaudible) of NSI saying in the summer of 1998, "Who is on the other side of your contract?" Well, the answer was, "John Pastell. He wears sandals. He doesn't respond to checks. We send him a check. He sends it back to us. This is no way to run something." Right? He's troubled by that. Who can grant it and who can taketh away. The fact that John could get out of bed one morning and decide that perhaps .com ought to be run by somebody else, was deeply troubling to a man trying to base a business, and ultimately an initial public offering of stock, on some form of stability and future predictability of what was going to happen.

So, that's basically the money answer. There is money to be made here. There are people who want to make it, and to have some predictability that they can make it, and therefore want some form of calculable rules and structure, preferably one that they control as much as possible. Nothing personal, but it would be nice to have some say in the structure that will affect us. That's the money answer. And it's also why, I think, given that I can make decisions--that was an extraordinary moment at the Board meeting where the first decisions on new GTLD's were made. And a bunch of companies had queued up $50,000 dollars each in order to have an application to get a new top level domain. And then the board meeting happened. They sort of discussed it. There were winners, there were losers. One loser was like, "Do I get my $50,000 dollars back?" The answer was, "No." And if you're a loser you want to feel like you got due process, because there was a lot of money at stake. Okay, of course, these things always come in three's, so there's a third answer, which is the historical accident answer. This is again getting back to the spotlight where we're looking for the key. And to unpack the historical accident(?) answer, I want to have a moment of group participation. Okay? We're going to play the "how somewhat troubled would you be" game. And I'm going to pose some scenarios to you, and ask that you indicate at the right moment by humming whether or not you are somewhat troubled by the scenario. So, here is Scenario Number One, are you ready? Google delists your site as a search result because someone in the German government placed a phone call. So, Google got a phone call from someone in Germany that said, "This site has bad stuff on it. You are to make sure that no search term will elicit this website as the answer to the search term." Okay?

And it may be, let's say, is your website. No longer will it be returned in Google through any combination of searching. How troubled would you be at that? 1-2-3--

__: By law or by choice?

JONATHAN: There's that ... (inaudible) has to ask the followup question. By law or by choice?

__: ... (inaudible)

JONATHAN: Google did it because somebody in Germany called them, and they didn't want to have a lawsuit over it. Is that by law or by choice?

__: It's by choice.

JONATHAN: That's by choice. Until the order comes up-- Damocles has to fall for it to be law. A somewhat narrow conception of law, but okay. Do you want to just hum or not then? Okay, no hum from ... (inaudible), he's not troubled yet

How likely is this, by the way? Very likely. Google delists lots of sites, at least from google.de, the German language counterpart to google.com, when someone, we don't know who, in the German government places a call and tells them to. They remove stuff from google.com under other circumstances, including the receipt of stylistic DMCA form letters that say, "Apere.com has copyright infringing material on its sites, we are aperesspecial.com, and please remove them from Google, which they did.

Okay, here is question number two. Microsoft refuses to cut a deal with your company announcing that your product's functionality will be recreated in a clean room and bundled in the next Windows, your IPO is next Tuesday. How somewhat troubled would you be? Ready, 1-2-3.

__: Hmm.

JONATHAN: Okay, there's a lot of individuals here, people like whatever, the .com boom is over, so not all that troubled. Microsoft announced that Windows will now have global user identifications. Your documents are tied to you. You produce a document. Buried within it is a code number that at least Microsoft, and perhaps the world at large like Richard Smith, could reverse engineer and tie back to you even if you don't, in the document, state your name. How troubled would you be? 1-2-3.

__: Hmm.

JONATHAN: Alright, we've got the public interest civil rights people troubled. [laughter] Time Warner Cable says you can't have high speed internet anymore, because Gazab(?) packets have been detected traveling from your computer to someone else's. Verizon, DSL agrees. You now have to move to a new house or resort to dial-up, if you want high speed internet access because there is no internet soup for you. How troubled would you be? 1-2-3.

__: Hmm.

JONATHAN: Alright, this is now a burning trouble. This is the most afraid you've been. The FDI attaches the Earstwile carnivore at your ISP and monitors your online activity. 1-2-3.

__: Hmm.

JONATHAN: Okay, pretty troubled.

__: Do they have a warrant?

JONATHAN: Do they have a warrant? We'll never know. The ISP is not allowed to tell you whether they have the warrant. ICANN through a web of contracts allows an arbitrator whom you've never met to take away your domain name because it's said to infringe someone else's rights. You have to get a new one. 1-2-3.

__: Hmm.

JONATHAN: Notice that the panelists hummed, and very few people in the audience did it. Now, maybe I'm being unfair here, so we should have the final catch-all category, fill in the blank. Stephan, I guess, would fill in the blank with ICANN takes away the CCTLD of the country, and it's now run by a man no one knows in Switzerland, which used to be the way it was before ICANN came along. The guy in Switzerland, a friend of John's, ran most of Africa's CCTLD's. So, that might be a troubling thing.

Alan, is there any nightmare I'm missing here?

ALAN: Oh yes.

JONATHAN: Twenty words or less give me the worst you can.

ALAN: Okay, ICANN through its contracts revokes the domain name or IP address of any users who is accused of fringing somebody else's copyright.

JONATHAN: Okay, how troubled would you be?

__: Hmm.

JONATHAN: Alright, the panel is humming as loud as it can. It's still not getting the audience all that worked up into a lather. Part of it might be because I would be troubled by that, to be sure, but it's not all that likely. This is again the future dragon rather than the current iguana. Most of the things on this list, which I guess is fairly hard to read, are things that are not unlikely. They're actually quite likely that they're happening at least to someone, if not to you, until we start getting down the blank. And then we have a system of two equation and two variables. And the more scary we can make it, the less likely at least it seems to be.

Should we still be troubled about something that is horrible and unlikely? Of course. But, we should at least take into account how likely it is. Alright, so to me this actually is a way of informing the question of how ICANN should be governed, and getting to the historical accident question. Because it says, does it matter how Microsoft is governed, how Google is governed, or Time Warner Cable or the Linux, or the FDI, or the IETF.

Now, people like Professor Fruken. Fruken wrote a great piece which you should read in the Harvard Law Review all about applying Harbermosian theory to, among other things, ICANN. And at the risk of completely mischaracterizing his 200 page piece, in 20 words or less, I took his basic message to be, this guy Harbermoss had it right. He had some cool ideas about how procedural verity can make for a legitimate organization that people respect. And ICANN, at least, has blown it. Nobody believes that the procedures with ICANN are actually all that-- I don't know, fill in the blank--democratic, Harbermosian. And he says, "It's not like these are completely idealized. There are organizations out there that have the Harbermoss idea at heart. The IETF, Internet Engineering Task Force is one of them, which naturally asks the question, "Why couldn't we run domain name management, the functions that ICANN does, like the IETF is run?

Interesting question that history, I think, offers some answer to, right? IETF wanted this function out. They wanted nothing to do with domain name allocation, which is why John did it, just alone, rather than as the IETF, he had to create his own name, iana, for what he was doing. And then ultimately why when John didn't want to do it anymore, it was tossed to a middle zone. It was because the IETF says, "We develop standards." And the development of standards is one thing, but the enforcement of them, the administration of them, and certainly getting even beyond standards administration, things like running the UDRP, that's not what the IETF wants to do. I think in part because the model, the Harbermosian model that works so well for the IETF, works well because of its subject matter limits. Because it's not trying to use the Harbermosian ideal to decide whether register.com or NSI should get the next domain name. And I do have a consensus decision on that. Is it whoever can pack the meeting with more people? You just don't have a means of deciding short of creating a sovereign government and all the attendant structures thereto. It just doesn't make much sense.

But, I say that it's a historical accident in a way that it turned out that domain names have such an important marquee function, that to lose one causes so much grief. If anybody hummed over the ICANN things, it was because when you lose your domain name, it's a very uncomfortable, inconvenient, possibly voice depriving thing. But, my claim from that previous list, of course, is that there are all sorts of things that entities can do to you on the internet that are uncomfortable, inconvenient, even rights depriving. And yet nobody is talking about how to govern Google. It's because Google was never ours to govern.

They're somewhat entitled to do what they want to do, because there's some competition. And because we didn't think of Google, someone else thought of it and ran the thing. Somehow, ICANN, we all think we've got some historical ownership stake in. And I say that's a different rational than the rational of ICANN can affect our rights. That is one rational. But, the other one is we have some historical public collective ownership of the domain name system, because it was devised in such a collective public interesting way. And that's why we want to hold onto it and prevent it from becoming captured by any of the many entities that have already, if not captured, already owned outright, so many important gatekeeping internet central functions. Whether it's search functions, operating system functions, network functions, all of these things run by private parties answerable only to their Board of Directors, or possibly their shareholders, or to the market. And we don't think they have to be run according to the Harbermosian idea. We would just rather they not rob us if they can help it.

Now, I'm not saying that there shouldn't be limits. I think there should be, and in fact, are limits on what anyone, any entity that has power to do defined by the public interest. Monopolies get special scrutiny here. Microsoft is not wholly empowered to just absorb whatever functionality it wants. At some point it will make the Justice Department mad and cause an abortive(?) ten year unsuccessful lawsuit that might cause Microsoft some small dent in their stock price.

And these that effect us in profound or even in small ways get special scrutiny. Public accommodate doctrine says that an innkeeper is, under certain circumstances, not allowed, if somebody offers the credit card to turn the person away, and say, "It's my inn, I don't want you in that room." In the United States at least the law says, you are not permitted to do it. There's an overriding public interest.

So, there are limits then on what even those private parties I was talking about can do. They are public interest limits. They are generally enforced by sovereigns which in the internet is a problem because there is no sovereign that runs the whole thing. Notice, by the way, Susan's answer as to who really wields the stick here. In a somewhat chilling statement, she said, "Well, the real force to be contended with here is the Department of Commerce." Can you think of any other circumstance in which the real force to be contended with here is the Department of Commerce? Right? The Department of Commerce publishes pamphlets. At one point it did ... (inaudible) administration on encryption. But, other than that, it's not clear what the Department of Commerce does.

Its control over ICANN, prior to ICANN entering into a ... (inaudible) of understanding with it, was to publish a policy statement, in the federal register with no power of law behind it, and not wanting to see a lawsuit try to sought out whether National Science Foundation funding or Commerce Department interventions actually had any real power. Was it ICANN's choice, or ICANN reacting to law by which it ended up agreeing to a contract with Department of Commerce. So that, in fact, Susan's statement is true. Department of Commerce could, at least if anyone could, pull the plug on ICANN if it wanted. Maybe that's not such a bad thing. And that's what I have here, "governance versus accountability versus intervention."

Governance is trying to make ICANN itself run like a government because of the reasons I've just talked about, that we think it's important to have it run in the public interest. That's the kind of things that Stephan wants to see, that countries from around the world should be equally, or least fairly represented, within ICANN governance, and he sees, and in fact it does fall short. It's the sort of thing Michael wants to see when he talks about the Harbermosian ideal.

For my part, I'm basically ready to give up on that. I don't think it makes a whole lot of sense. Instead we want to look to accountability or intervention as the way to keep it clean. Accountability means something like you're in a contract with the Commerce Department, and if you blow it eventually they'll pull the plug. And the threat of them pulling the plug keeps you in line. That's why garbage contractors in a municipality, which are not run according to Harbermosian ideals, still show up and pick up your garbage on a pretty good basis because they don't want to lose the contract.

Now, of course, there the money is coming from the municipality with ICANN. ICANN is really the garbage man of the internet. But, the garbage it picks up is being funded by the citizens, rather than by the Commerce Department, right? So, there isn't as much accountability there, as much threat, rather it's the threat of legitimacy or-- I won't go into it, but basically the other mirror route stopping to listen to it, etc. etc. That would be then the accountability model.

Then there's also the intervention model. The intervention model is what I assume we would do if we thought Google went too far out of line and was too powerful, and there wasn't enough competing search engines, and they were willy-nilly. They just didn't like certain people. No soup for them. There would be some form of legal intervention, not to say Google, we're going to take you over and you have to be run according to Harbermosian idea. Instead it would say no, Google, here are the limits on what you can do, or at least tell you have to disclose what you can do. Those are also tools then that could be applied to ICANN without trying to make it a mini-U.N. So, I think that's it. I don't know why this slide is repeating itself. I'm done. I hope I've thrown enough smoke bombs to make people interested and exciting. And I am eager to know what you think. Thank you. [applause]

__: Thank you, Jonathan. We'll let the implications of that grand call for revolution ripple over while we take some questions. Looking to my conference Chair, I'm going to assume that we can shift time a little bit and let questions develop. He's not shaking his head, so I'll take that license.

I think you are next, sir. And let me say--which I should have said at the beginning--please say who you are when you ask a question. Speak loudly so we can hear you. And try to keep questions relatively concise.

Q: ... (inaudible)

A: I think as a matter of fact, that there are two-- There is a conflict between the private self-interested and that's simply I'm in business, I'm NSI, I'm in business, I want to earn money and government power, in which I'm a trustee for the public. And I'm a trustee duly both for my public, like a government is a trustee for its-- And I'm also a trustee for the internet as such. And there is a recognition of that. If you look at the statement of foreign governments, that's what they agree to.

So, you have really a three party-- my own money, yes, the internet, and my public. Now, what was the question? Is how are we going to mediate among them?

Q: ... (inaudible)

A: As far as private interests are concerned, yes, we have freedom unless there is a problem. So, you have really intervention-- You define what the problem is, and then you control it. Obviously, if you have a monopoly, you have more intervention, because there is a higher possibility, a violation of, in fact, the public interest.

When you come to the public interest, don't you mean really the interest of the internet? Or, am I wrong about that?

Q: ... (inaudible)

A: Alright I just answered that. I'm hoping that it is in the interest of each party to give some more preference to those developing countries. What I'm really aiming at is what Professor Frunken suggested. And that is, what kind of a structure will give self interest, the incentive to exactly what you're talking about- If I think that the future markets are in developing countries, well, then I might go there. And people have. You see that.

So, the question is what kind of structure, what kind of an institutional structure will be self motivating to do exactly what you are suggesting. You accommodate all these three interests.

__: This is wonderful. I think by virtue of having it as ... (inaudible) and by virtue of the role he played in the last discussion, Professor Frunken needs some right of reply. I know that my copy of his paper says "Do not cite," so we may have a complaint against Jonathan.

__: You should have just cited it anonymously.

Q: You can't have Harbermosian ... (inaudible), process way upstream. ... (inaudible) Let me talk about your "Don't worry be happy"--

JONATHAN: Don't worry, be somewhat worried.

Q: ... (inaudible) I thought you were going to talk about the new piece, which the real danger here is that our government, not just the United States government, but our government ... (inaudible) ICANN and other energies like supranational ad hoc ... (inaudible) to get out from the constraints of democratic processes, and the sense of ... (inaudible) together, ... (inaudible) That's a much more serious ... (inaudible) How do you ... (inaudible) about that one? That's a much bigger deal than the--

JONATHAN: First on the citation point, I did read it in the Harvard Law Review. I think it's now out, so I hope I didn't ... (inaudible) in citing it. Your point about the garbage trucks is well taken. I suppose the fact that a monopoly contract to pick up garbage is given by a municipality which, hopefully, is used to some form of Harbermosian ideas, at least that's what would make it legitimate is right. That's the sort of thing I'm think of ICANN as a more delegated function, that then can run itself however it wants. Delegated either through market mechanisms like spectrum allocation, God forbid, or delegated more like the garbage contract.

Now, your fear, echoed I heard by Milton over there, I don't know if I'm supposed to identify humms-- Milton, by the way, wrote a great book about the history of all this called Ruling the Route, which if you were confused by any of the acronyms you should read his book, and it will clear much of the fog away. Where was I going with all this? You're about to find out.

What I was going to say was, that seems to me like we should then be worrying about the governments. So, we should be restricting the governments. But, the idea that as a bulwark against government's subornation of ICANN to do these awful things that I assume Andrew McLaughlin has no particular interest in doing. And, you know, that Alan has an interest in fighting, don't make it defense at the ICANN level by having some Harbermosian scheme by which ICANN itself would rise up and say, "No, no thanks, we don't want to do that." Instead go to the governments and make sure that they never ask or force ICANN to do it.

If Ed Markey gets his way, and .xxx is created as a domain name, top level domain sandbox for kids only content-- I guess, ... (inaudible) no kids allowed, or .kids, whatever ... (inaudible) idea he has these days-- This is being recorded, isn't it? He's actually my congressman too. Whatever idea he has these days, then you've got to stop it at the pass. Because no matter how responsive ICANN is as a Harbermosian, democratic representative institution, if the U.S. Congress says, "Thou shalt create .xxx or .kids, I think they're going to do it. Or, at least whether or not they're going to do it will not depend on what form of governance model so much that they have.

__: We're so far over time, and there were so many worthy interventions, I simply can't choose among them. I did say that Michael was going to have the last word. So, I'm going to have to cut it off. I think that the level of discussion as we got going ... (inaudible) well for the rest of the day. Let's continue it over coffee in the next panels. Thanks you very much.

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