Kent and all,

Kent Crispin wrote:

> On Wed, Jun 24, 1998 at 06:21:48PM -0700, Karl Auerbach wrote:
> > Long message.
>
> As is what follows
>
> > Summary for those who are tired of reading:
> >
> > Kent says that the WP is self actuating, that it will simply come to be
> > through quiet negotiations, held in the background and hidden from public
> > view and review, between IANA, NSI, NSF, and other interested parties.
> >
> > In other words, Kent says that we can trust the government.
>
> That's not at all what I said.
>
> > I say: Nonesense.
>
> It's so much fun to shoot down strawmen, isn't it :-)

  If you are seeking amusement I suppose so.  If you are serious about
Internet Governance that is another story.

>
>
> In fact I am saying very much the reverse -- that the government
> should not be involved any more than is absolutely necessary.  And
> most definitely that the Congressional involvement you are advocating
> should be strenuosly avoided.

  We agree with this for the most part.  There may be some need for congressional
involvement.  And in fact that involvement is already underway as the recent
hearings have stood testimony to.

>
>
> > It is incumbent upon the United States, in any action
> > it takes, to be able to demonstrate its source of power, all the way back
> > to the Constitution.
>
> ?? It must be the lawyer in you talking.  In any case, I'm sure that would
> be a good line to use on a traffic cop when one gets pulled over...

  Interesting choice of words Kent.  It is a traffic cop that may indeed be
necessary
when it is all said and done.

>
>
> [...]
> >
> > Now for the details....
> >
> > > > I don't think I'm alone.  For example, read Larry Lessig's paper on the WP
> > > > on his Harvard web pages.
> > >
> > > I visited his pages and didn't see any paper on the WP.
> >
> > It's the one entitled "Governance".
>
> Indeed -- someone kindly sent me a pointer -- there was no obvious
> link to it from any pages I could find.  And I read it -- it is short,
> and an excellent and thought provoking essay.  However, it does not
> support your position.
>
> > >> The WP calls for an organization to be formed.  What if there are multiple
> > >> such organizations?  Who selects and how?
> > >
> > > The WP doesn't address that issue.  IMO the implication is clear,
> >
> > Clear. Clear how?
> >
> > Remember, the challanger organization can arise today, next week, next
> > year.  Unless there is an open selection process, with clear and objective
> > criteria, the government can, and will be, subject to charges of cronyism.
>
> There will be no selection process.  Instead, there will be what is
> called a consensus.  (If there isn't a defendable consensus the WP
> punts to plan "B".  Plan "B" is the "null plan".)

  Consensus is fine, but it that enough or is that what KIND of consensus?
A majority consensus?  An minority consensus?  Without the MAJORITY
of the Internet community that wishes to participate and a MAJORITY of the
Stakeholders that wishes to participate, there can and will NOT be a
governance system that will work over the long haul.  This is in fact what
has brought us to where we are now.

> That is, the WP does
> not contemplate or address any alternative to consensus, and
> therefore, there is no issue of "picking" from competing
> organizations.

  This is pretty cryptic Kent.  But in short we would say that there is not
LIKELY to be any one organization that will be in a controlling position.

>
>
> Of course "consensus" is a somewhat vague word.  However, it does not
> require unanimity, and it does not require that the loudest voices be
> silent.

  How true.  It DOES require a MAJORITY.

>
>
> >> however, that the current IANA will be at the center of the decision process
> >> for the new organization.
> >
> > That in and of itself would be an arbitrary and capricious decision,
> > which is the term that courts use when they overturn administrative
> > actions, such as we have here.
>
> It isn't a decision at all.  It is the clear implication of the number
> one priority of the WP -- the continued stability of the internet.  I
> should say, it is a clear implication to anyone who has paid close
> attention to the process.

  I suppose that you re referring to the IANA here, but that certainly is not
clear.  Yes the IANA has paid close attention to the process and yet has
not actively participated in it. Rather it is partly because of the lack of that
participation that we have the White Paper as a guideline.

>
>
> > Moreover, the WP doesn't say that.  It merely says that IANA like
> > functions will be under control of the corporation.
>
> It does say that, though wrapped in burfel.  Perhaps my burfel filter is
> better than yours:
>
>     The introduction of a new management system should not disrupt
>     current operations or create competing root systems.  During the
>     transition and thereafter, the stability of the Internet should be
>     the first priority of any DNS management system.

  Yes, but if you read this carefully, it does not say that competing Root systems
cannot co-exist either.

> And:
>
>     We believe, and many commenters also suggested, that the private
>     sector organizers will want Dr.  Postel and other IANA staff to be
>     involved in the creation of the new corporation.

  And yes they should be involved.  Though not in control nor necessarily
in a commanding position either.

>
>
> Now, given those statement, do you think the USG is going to seriously
> consider any effort that doesn't directly involve IANA?  If you do,
> then I really think your political reality goggles need polishing.
>
> In any case, as far as I personally am concerned, any effort that
> does not have the current IANA directly involved is a non-starter.
> I suspect there are many who feel as I do.

  Absolutely right.

>
>
> This is not a matter of "Jon Postel is King".  This is a matter of
> practical reality.

  Indeed this is so.  It also means that Jon Postel in any BOard seat is also
not necessarily a option either.

>
>
> > >  That is, if there are multiple competing
> > > organizations, the one with Jon Postel's blessing will get the nod.
> > > This is not explicit in the WP; and couldn't be.  But it is the real
> > > politics of the situation.
> >
> > Jon, although he is a great guy, isn't automatically the King of the
> > Internet.  And an agency of the United States is constitutionally
> > prohibited from making him one.
>
> Nobody is talking about a coronation.  The point is that a hostile
> takeover of the IANA function isn't in the cards, and you can forget
> any solution that looks like that.  And further, any "solution" that
> doesn't involve the current IANA *will be* a hostile takeover
> attempt.
>
> [...]
>
> > About the only authority that the United States has today, and even that
> > is questionable, is to continue the present regime of the NSF exercising
> > control itself or contracting-out, as it is currently doing with NSI.
>
> **OF COURSE** That's the point! As far as IANA is concerned, the WP is
> largely a charade, talking about transferring authority that the
> government doesn't *really* possess anyway!.

  Now you are far off base.  The USG has always possessed the DNS and the IP
addressing system sense it's conception.  Here is where you have a terrible flaw
in you thinking Kent.

>
>
> > > > The WP calls for "an agreement".  Under what law, under what contracting
> > > > authority?  An agreement is a set of mutual obligations, which means that
> > > > there is some mechanism for failure to meet those obligations.  In
> > > > general, an agreement, a contract, with the Federal Government is subject
> > > > to many, many statutes and procedures.  It's a big field of law all by
> > > > itself.
> > >
> > > You are imagining specificity where none exists.  The WP calls for an
> > > "agreement or understanding" with the USG.  It doesn't say that there
> > > *will* be a contract (though there might be contracts for specific
> > > items).
> >
> > A contract is a legally enforceable agreement.  And it would be an
> > unusual reading of the WP to find that it says that it will transfer all
> > these good and valuable things to the yet unformed organization without
> > any way to ensure that the corporation remains an open, non-monopolistic,
> > public-spirted body.
>
> In other words, you are advocating that the new IANA be essentially
> an indirect arm of the USG.  I don't think that will happen, because
> it flies in the face of the understandings between the USG and the EU
> (see the EU's comments on the GP).

  We agree here.  This cannot be the case.  However the New Corporation will
have to operate under the laws of the USG in as much as that is possible and
prudent.

> It is a vital and absolutely
> necessary component of the WP that the IANA be private, and, while
> incorporated in the US, not in any way tied to the US.  The special
> laws and so on that you talk about are in direct contradiction to that
> spirit.

  Not at all Kent.  Karls exactly right here we believe.  Some special
legislation may indeed be necessary.

>
>
> [...]
> >
> > > > The WP calls for the transfer of the domain name database.  This would
> > > > call into play several restrictions against that in the Privacy Act.
> > >
> > > I think there are creative possibilities for how that transfer can
> > > take place.  For example, DOJ could reach an accord with NSI that
> > > requires all new registrations, renewals, and changes for .com/net/org to go
> > > through a different organization (say CORE, just for fun).
> >
> > That would violate the Privacy Act because it is being done under the
> > clear control of the United States.
> >
> > > ....  The database
> > > would never be explicitly transferred.
> >
> > That kind of simplistic juggling won't hide the fact that it is government
> > action clocked in private guise.
>
> It's government action, but the database never changes hands.
> Instead, a *new* database is built up over time as registrations move.
> Registrations with NSI can't be renewed, you transfer your
> registration to a new registrar, and enter new contact data at that
> time.

  This is indeed one method of handling this part of it.

>
>
> > But let's step back a moment, why are you fighting so hard against the
> > concept that a government must operate according to its organic powers,
> > in other words, according to law?
>
> You are halucinating.  I am not fighting against that at all.
>
> > What you are advocating is non-government, chaos, anarchy.
>
> ??I am advocating private sector control over what is essentially
> a business activity.  You are advocating government control over that
> activity, it seems?  Not just that, but US government control over an
> intrinsically international organization.

  The IANA is an intrinsically International organization?  In some ways it has
"Arms" that are international, yes.  But in fact it is a US organization and always
has been.

>
>
> Let me elaborate on that just a bit:  It is my belief that *any*
> special USG handling of the IANA corporation will be viewed by non-US
> interests with *great* suspicion.  In fact, I would go so far as to
> say that the EU would launch an immediate protest at such a
> development.  Therefore, any "solution" which requires such special
> treatment is Dead On Arrival.  Now, as I read your proposal, you are
> advocating such special legislation from the outset, and therefore, I
> think your proposal is a non-starter.
>
> > If the United
> > States can operate beyond bound to give the Domain Name System to this
> > corporation, then next week it can reverse itself and take it back.
>
> I don't believe the Domain Name System is the USG's to give away.  At
> most the USG has at this point a rather tiny shred of legitimate
> involvement in the actions of IANA, and a somewhat more decisive
> connection to NSI.

  The IANA is also contracted to the USG as well.

>
>
> > > > The WP calls for the exercise of monopoly powers.  There are laws about
> > > > this which need to be navigated, and probably modified.
> > >
> > > "Possibly modified".  The WP believes effectively that by running as a
> > > standards body this can be avoided.  There are precedents for this
> > > kind of organization.
> >
> > "believes" is not an exemption.
> >
> > We are not talking about a standards organization here -- we are talking
> > about the transfer of significant assets of the United States and of
> > private parties,
>
> This is a non trivial question, not a fact.
>
> > significant powers over intellectual property rights,
>
> Likewise.
>
> > and
> > significant powers of direct governance over a new, highly valuable,
> > infrastructure.
>
> That is true for standards bodies in general.  How much is TCP/IP worth?
>
> > > I did read one of Lessig's papers -- about modalities of regulation.
> > > The key is that the database doesn't have to be transferred, it just
> > > becomes obsolete...
> >
> > It will be many, many years before the current contact database becomes
> > "obsolete".
>
> It could be obsolete in 2 years.  Every domain will have to be
> renewed by then, and renewal could require registration in a new
> database.

  Yes, key term here is "Could".

>
>
> >  And the fact that it will someday be out-of-date is not a
> > valid argument to simply transfer it without considering the current
> > privacy rights of the data withing it, or of the commercial value
> > bestowed on the grantee.
>
> Agreed.
>
> > > Standards bodies...As I said, I have been told by people who should
> > > know that this is doable.  You can argue with them when the time
> > > comes...
> >
> > Sure, prove to me that this organization is a mere standards body like
> > ANSI or IEEE.
>
> Unfortunately, a proof is not short.
>
> > You know that it isn't.  You are on the PAB.  You see that in the
> > operation of the domain name system there are many operations which are
> > not the making of standards.
>
> Yes, I am on the PAB.  And I think that almost all of the activities
> of interest can be cast in the mold of the IETF, and in fact I have
> publically advocated such a scheme for a long time now.  All of the
> policies could go through similar rough consensus procedures.  It
> simply is not that big a stretch, Karl.  I *have* thought about it, a
> great deal.
>
> > How, for instance, is the collection of contact names a standards-body
> > function?
>
> It isn't.  nIANA doesn't collect contact names.
>
> >  How, for instance, is the choice of whether two names are in
> > conflict according to intellectual property laws a standards-body
> > function.
>
> It isn't.  nIANA makes no such decisions.  It just sets a standard to
> the effect that any registry must support some well-known (perhaps
> WIPO based) dispute resolution process.

  God forbid they are WIPO standards.  What a mistake that would be.

>
>
> > This thing is not a standards body.  Any attempt to paint it as one is
> > seriously off kilter.
>
> We will have to agree to disagree...
>
> [big snip]
>
> > I'd turn that about and saying that you are being very Pollyannaish about
> > some very serious matters.
> >
> > It very much concerns me that intelligent people like you are willing to
> > grant power to a government agency simply because it is a government
> > agency.
>
> Quite the contrary -- as far as nIANA is concerned I believe little
> power is involved -- more of a handshake and best wishes kind of
> thing.  The matter of NSI is rather different, and in all honesty I
> don't think anyone has any certain knowledge how that will turn out.
> I think you underestimate the strength of the Governments position (I
> base that on things I hear).  But we both know that is an
> extraordinarily complex situation politically and legally.
>
> [...]
>
> > And that's all I'm trying to do here - is to make sure that the proper
> > foundations are in place, that we don't leave a legal gap in the system
> > through which we can lose to unfettered, self-interested, profit-seekers,
> > what little control we still have over the internet.
>
> Hmm.  Interesting perspective.  One of Lessig's other papers talks
> about how the Internet is very close to becoming a medium of control
> rather than a medium of freedom...
>
> Anyway, we've probably beat this to death.
>
> --
> Kent Crispin, PAB Chair                 "No reason to get excited",
> kent§songbird.com                       the thief he kindly spoke...
> PGP fingerprint:   B1 8B 72 ED 55 21 5E 44  61 F4 58 0F 72 10 65 55
> http://songbird.com/kent/pgp_key.html
>
>

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