Subject: [ifwp] The White Paper Lied: How Postel Got his Lawyer and ICANN Its By-laws and Board (fwd)

From: Bob Allisat <[email-masked]>
Date: Sun, 11 Oct 1998 09:35:29 -0400 (EDT)

---------- Forwarded message ----------
Date: Sat, 10 Oct 1998 23:42:27 -0400
From: Gordon Cook <[email-masked]>
Reply-To: [email-masked]
To: IFWP Discussion List <[email-masked]>
Subject: [ifwp] The White Paper Lied: How Postel Got his Lawyer and ICANN
Its By-laws and Board

The White paper lied.  Having promised an open process, Ira and Becky went
through a public charade and privately let a small group of insiders
manipulate design the ICANN and chose it's board just so long as the US
government was kept informed and given some powers of veto.

Open Process I: Jon Postel Gets a Lawyer

After the fiasco of Jon Postel's redirection of the root servers, some of
his friends decided he needed a lawyer of his own.  The one at USC was
there to serve USC not Jon.  Given the magnitude of the task a pro bono
attorney was necessary.  Friends asked friends and before long Jones and
Day percolated to the top of the list.  A major firm wanting to get into
the internet business volunteered Joe Sims, a very wealthy and successful
attorney.  Joe has been Jon's lawyer since the spring.

An opportunity to draft the articles and by laws for ICANN was one of the
prime points of interest that would propel Sims and Jones and Day into the
heart of the Internet world.  Unfortunately for all concerned what made the
internet the internet was a learning experience for Joe and Jon, as an
engineer, was more interested in making the protocols run on time than
arguing with his attorney.  As someone rather intimately involved in the
process has told me, the by-laws have taken the form that they have because
Sims decided to do the lawerly thing and write them from the point of view
of making as difficult to sue the new organization as possible. One wonders
if this level of expediency was what Ira Magaziner meant when he started to
talk about Internet governance as a once in a century that we better "get
right."

Board members with no accountability except to themselves?  The harder to
sue.  No provision for freedom of speech or open expression?  The harder to
sue. Fiscal constraints in the by laws?  You have to be kidding.  If they
were there, someone could sue alleging improper enforcement. Jon Postel,
feeling put upon from many quarters, apparently lacked the skills and
motivation necessary to intervene.  Very likely he simply couldn't conceive
that he had any need to explain himself to anyone besides his immediate
technical constituency which simply wished the process would vanish.

Persons familiar with events have told me that as far as they can tell Sims
-- a Washington attorney to begin with -- introduced himself to the key
players in DC to get a sense of the lay of the landscape. To cover himself
Sims would, of course, run his drafts by Magaziner.  In the meantime, he
built a small tight, "trust-me," insiders controlled organization crafted
to be as impervious to outside challenge as possible.

Open Process II: The Old Boys "Self select" to Chose the Board in Secret"

As the summer went by various Internet old-boys working through Jon's ITAG
group discussed what steps to take next.  Toward the end of August a group
of people 'self selected' in order to choose the ICANN board.  I know the
names of three involved.  The politest label would be Internet old timers.
This group met largely on line over a period of a few weeks to vet names
discuss them and come to consensus on the ones that emerged.  Although I
smell ISOC in the cabal, (who could not do so given the way Don Heath
handled himself during the summer), I have been assured in a credible
fashion that ISOC, as an organization, was not involved. And although Jon
Postel may or may not have played a direct part in their deliberations, he
was certainly aware of what they were and are doing.

Ira Magaziner, on behalf of the US government, was aware if not part of the
active group.  Foreign "governments" were told that they should decide whom
they wanted.  In the case of the 3 European nominees it was the EC who
decided and whose first nominees were rejected -- delaying the appearance
of the final list.  In the case of Japan, it was not the government but
rather the Ministry of posts and telephones and telegraph (tv?) (MPTT).
Japan got a seat as the largest Internet user in Asia.  Australia a seat as
the second largest.  Given the collusion between the old boys and the White
House in making these decisions, I would like to know precisely where the
ex-parte rules fall in governing what must be made a matter of public
knowlege.

Remember the sudden collapse of the IFWP process at the beginning of
September including, the otherwise inexplicable, abandonment by Barbara
Dooley and the CIX and then Sernowitz and AIM following Barb's lead?  In
his interview with me the CIX board member made it clear that the only way
CIX could "keep its seat at the table" was to do what it did.

I must assume then that the 'self selected' board chosers invited CIX to
join them and made the ticket of admission the abandonment of the Berkmann
Center plans for a wrap up meeting. A natural move for these "fixers"
having as they did no faith in the viability of an open meeting.  If
Barbara Dooley was told the price of entrance into the selection process
was drop out of IFWP, then her otherwise unexplainable action makes perfect
sense: join the inner cabal and use her voice in board selection to protect
her member's interests.  Of course ISP/C which represents more ISPs than
the CIX was not asked and today we have an ISP/c press release lamenting
the closed nature of the process.  Smaller ISPs obviously don't count in
the Clinton administration's scheme of things. Given the discrimination of
being kept in the dark, ISP/C and others will likely have good cause to
sue.

It seems that there are three classes of internet decision makers.  First
the good old boys who have manipulated ICANN into existence.  Second a more
peripheral circle of participants like ORSC and the BWG who were foolish
enough to take Ira and becky at their word and played as though the process
was open when in fact it was closed.  Third the remainder of the internet
using public.

Open Process III: Selecting ICANN's President

The process of choosing a one-year interim president for ICANN is underway
right now.  It is being done by the same cabal that chose the board.  The
task of the initial president will be to establish and fund ICANN; and to
set up procedures for the Board's approval for the selection of the first
permanent President.  All very neat and tidy and all done with the sanction
of the White House's appointed leaders -- Becky Burr who is best
characterized by her arrogance and Ira Magaziner who, although a charming
man, I simply no longer trust.  (Ira is remarkable.  I have been talking
with him on and off for nearly a year. Right up until the last week of
September I found his assertions credible.  But even after I disavowed him,
he has remained in contact.  He gives the impression of sincere interest.
The problem is that he has used up all his "capital' of good will.)  I and
many others want to see actions -- not just continued assertions of "what
could we do that would cause you to support us?"  Many of us are now
comparing notes.  Ira's standard operating procedures are becoming more
clear.  Lest some think I am being too harsh on this man, let me ask how
one is supposed to react when someone in a position of trust and power
repeatedly gives assurances?

Can Magaziner Redeem Himself?

For those of us who were foolish enough to take Magaziner and Burr at their
word, the process that we have been treated to is fraudulent because it was
advertised as open when it was not.  Many many people have wasted great
time and effort in network mail-list playpens while the real movers and
shakers resorted to closed meetings and mail lists to craft their solution
which we all saw presented as a fait accompli with the incorporation of
ICANN and the submission of the Board members.

The only way that Ira Magaziner and Becky Burr can maintain any semblance
of integrity for the conclusion of the white paper process, is to stop
pretending that there is consensus and bring the good old 'people out into
the open.' Have them sit down with BWG and ORSC and work out their
differences. They must do so under conditions that are tightly constrained.
Direct democracy will not work here.  We have had three years of direct
democracy debate and the results sadly show the internet lacking in
maturity.  So final closure on these issues should be achieved by the
construction of a matrix outlining only the points of differences and
focused on having say three group-selected representatives from ICANN,
ORSC, and BWG at a retreat under competent legal guidance until they can
hash out a final compromise.

Ira and Becky promised openness.  So far they have delivered lies.  By
pretending to run an open process and doing just the opposite, they have
created an atmosphere of mistrust and suspicion that right now has many
folk looking for ways to sue.  Ira in his lip service to openness has
perpetrated a huge fraud.  If he chooses to press forward and annoint his
backroom-created winners while claiming success for an "open" process he
will leave the US government with a fresh failure on his hands and the
history of the internet will speak poorly of him.

***************************************************************************
The COOK Report on Internet            White House Corrupts Formation of IANA
431 Greenway Ave, Ewing, NJ 08618 USA  Corporation. White Paper a Sham. See
(609) 882-2572 (phone & fax)           http://www.cookreport.com/sellout.html
[email-masked]                    Index to 6 years of COOK Report, how to
subscribe, exec summaries, special reports, gloss at http://www.cookreport.com
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