ABOUT ICANN - Overcoming ICANN:Forging Better Paths for the Internet

David J. Farber
Peter G. Neumann
Lauren Weinstein

March 18, 2002
http://www.pfir.org/statements/icann

Overcoming ICANN: Forging Better Paths for the Internet

An Open Letter to the Global Internet Community

Despite its best efforts, the Internet Corporation for Assigned Names and Numbers (ICANN) has proven overall to be a failed experiment in Internet policy development, implementation, and management. ICANN's lack of meaningful representation, and its continuing pattern of drastic and seemingly arbitrary structural and policy changes (among other shortcomings), have created an unstable and suspicion-ridden environment that is detrimental to the interests of the vast majority of Internet users
around the world. The resulting overly politicized situation not only threatens the stability of the Internet itself, but also invites drastic and undesirable interventions by a variety of vested interests.

We will not in this document detail the range of specific problems and issues, which have become widely recognized and known. Key aspects of the problems relating to the Internet and ICANN have been outlined in previous statements [1][2][3], along with a set of basic proposed Internet guiding principles [4]. The continuing rapid deterioration relating to ICANN and its impact on the Internet now forces us to recommend the following three actions.

First, as an immediate temporary measure, all Internet policy, operational, and other Internet-related functions currently performed by ICANN should be transferred, as soon as practicable while maintaining continuity, to a different, already existing non-profit organization (or organizations) on a non-permanent, strictly stewardship basis. One potential candidate we would suggest considering for this role would be the Internet Architecture Board (IAB), although there are a range of other possibilities of course. The process to plan and begin a transfer of responsibilities from ICANN should be initiated immediately.

Next, we recommend that an intensive, international study be started at once, with a mandate to propose detailed and meaningful paths for the Internet's development, operations, and management. The goal of this study would be to help guide the formation of purpose-built representative organizations and policies that would be beneficial both to established Internet stakeholders and to the wide variety of organizations and individuals who are effectively disenfranchised in the current Internet policy environment. This study should consider both short-term and long-term alternatives, and could potentially be conducted by the National Research Council (NRC) and related international organizations, among other possible frameworks.

Our third recommended step would be for the results of this study to be carefully considered and, as deemed appropriate, to be implemented. Internet-related functions would be transferred from the temporary stewardship organization(s) to the entities developed from the study results.

Time is definitely of the essence if a potential "meltdown" of Internet policies, functionalities, and operations in the near future is to be avoided. There is in particular an immediate need to begin the process of depoliticizing the situation and providing opportunities for consensus building regarding the range of Internet issues. Wide consensus has already been achieved on at least one key point -- even by ICANN's current president -- ICANN is seriously broken. We agree, and we additionally assert that ICANN's history, structure, and behaviors strongly indicate that the most productive course would be for ICANN's role in Internet affairs to be discontinued.

This is not to cast aspersions on the efforts of any individuals involved with ICANN in the past or present. Rather, we feel that ICANN has failed as an organization, and that the amount of "bad blood" and institutional "baggage" it carries doom "reform" efforts within the organization itself to ineffectiveness at best. We come to this conclusion reluctantly, since in the past we have considered that there might be an appropriate continuing role of some sort for ICANN. Unfortunately, this is no longer possible.

We do not have all of the answers regarding Internet issues -- nobody does. The proposals above are not presented as any kind of fait accompli, but rather as an attempt to stimulate recognition that the Internet is facing serious problems that are in need of serious solutions. The search for solutions will be difficult, and will be a continuing effort that far transcends matters relating to ICANN. But half-measures will no longer suffice, and the status quo (however it might be disguised or "spun") can no longer be tolerated.

Some persons genuinely fear that alternatives to ICANN might lead to situations even worse than the current dysfunctional ICANN environment. That is indeed a non-zero probability, but the increasingly chaotic situation with ICANN makes degeneration a decided *likelihood* if ICANN remains involved with Internet matters.

The day of reckoning is already upon us. Work should begin immediately to define and implement collaborative processes that can provide hope of assuring that the Internet will be the best possible resource for the population of the entire world. The risks in change are real, but the need for change and the possibilities for meaningful and beneficial progress are even greater. If we do not take these steps, we may well be dooming the Internet to a future of mediocrity at best, or of decay, fragmentation,
greed, and even worse outrages.

[1] PFIR Statement on Internet Policies, Regulations, and Control
http://www.pfir.org/statements/policies

[2] PFIR Proposal for a Representative Global Internet Policy Organization
http://www.pfir.org/statements/proposal

[3] URIICA Announcement
http://www.uriica.org/announcement

[4] PFIR Declaration of Principles
http://www.pfir.org/principles

Sincerely,

David J. Farber
farber@cis.upenn.edu
Tel: +1 (610) 304-9127
Member of the Board of Trustees EFF - http://www.eff.org
Member of the Advisory Board -- EPIC - http://www.epic.org
Member of the Advisory Board -- CDT - http://www.cdt.org
Member of Board of Directors -- PFIR - http://www.pfir.org
Co-Founder, URIICA - Union for Representative International Internet
Cooperation and Analysis - http://www.uriica.org
Member of the Executive Committee USACM
http://www.cis.upenn.edu/~farber

Peter G. Neumann
neumann@pfir.org or neumann@csl.sri.com or neumann@risks.org
Tel: +1 (650) 859-2375
Co-Founder, PFIR - People For Internet Responsibility - http://www.pfir.org
Co-Founder, Fact Squad - http://www.factsquad.org
Co-Founder, URIICA - Union for Representative International Internet
Cooperation and Analysis - http://www.uriica.org
Moderator, RISKS Forum - http://risks.org
Chairman, ACM Committee on Computers and Public Policy
http://www.csl.sri.com/neumann

Lauren Weinstein
lauren@pfir.org or lauren@vortex.com or lauren@privacyforum.org
Tel: +1 (818) 225-2800
Co-Founder, PFIR - People For Internet Responsibility - http://www.pfir.org
Co-Founder, Fact Squad - http://www.factsquad.org
Co-Founder, URIICA - Union for Representative International Internet
Cooperation and Analysis - http://www.uriica.org
Moderator, PRIVACY Forum - http://www.vortex.com
Member, ACM Committee on Computers and Public Policy

(Affiliations shown for identification only.)

<----------------->

Karl Auerbach brought legal action against ICANN today Mon, 18 Mar 2002

<----------------->

From: Cindy Cohn <Cindy@eff.org>
Date: Tue, 19 Mar 2002 20:30:24 -0800
To: dave@farber.net
Subject: Fwd: Re: ICANN: Auerbach's Allegations Off Target

Hi Dave,

Feel free to post this to IP with attribution. As you know, EFF is serving as co-counsel to Mr. Auerbach.

I think a little legal context could be helpful to IPers considering Karl Auerbach's lawsuit against ICANN and ICANN's published response. I apologize in advance for the repeated use of the term "fiduciary duty;" I don't think I've ever used it so many times in a single message.

First, as a Director of ICANN, Karl has a fiduciary duty to the corporation under California law. The duty is also repeated in the ICANN Bylaws (Article V, section 8). Karl has repeatedly acknowledged his fiduciary duty in his correspondence with ICANN, so the characterization of this dispute as arising from Karl's failure to "acknowledge" his fiduciary duty is misleading.

Second, Karl's fiduciary duty includes ensuring that the corporate records are in order. It is in furtherance of this duty that Karl first sought the records in November, 2000. This duty also includes keeping confidential corporate information confidential, so the claim that a separate contractual agreement is required to ensure this is unfounded. Karl has always been willing to abide by his fiduciary duties concerning corporate privacy and has repeatedly affirmed this to ICANN management.

Third, in addition to his duty, California law gives Karl an "absolute right at any reasonable time to inspect and copy all books records and documents of every kind . . ." California Corporations Code sec. 6334. This right is also repeated in the ICANN Bylaws (Article V, section 21).

So with this in mind, here are a few responses to ICANN's specific claims:

>According to Lynn, Auerbach has only been asked to affirm that he will abide by >reasonable procedures for access

What ICANN's management wanted Karl to do contractually was different than simply affirming his fiduciary duties. It was to agree that the decision to grant him any access or use of corporate records rests in the first instance with ICANN management. Then, if he disagreed with management, it set up an appeal process first to a small subset of the Board and then to the entire Board.

>endorsed by ICANN's Audit Committee (composed of three independent Directors) >and shared with the entire Board. "He could have had access months ago but >prefers to file lawsuits instead," noted Lynn.

This wording is interesting. Note that Mr. Lynn does not say that the procedures were "adopted" by the Board. This is because they weren't. They were merely "shared" with it.

The lawsuit is about whether it is proper for management to impose such procedures on Board members, as well as whether the procedures management put into place were "reasonable" in light of Mr. Auerbach's legal rights and duties as a member of the Board and ICANN's own Bylaws.

>Among ICANN's 19-member Board of Directors, only Mr. Auerbach has objected to >those procedures, refusing to acknowledge that all ICANN Directors owe a fiduciary >duty to ICANN. He claims that he alone, and not the whole Board, will determine >whether to disclose personnel and other information normally kept confidential or >privileged.

As noted above, the Board has not passed any resolution concerning Board member access to corporate records.

Note that although it is not at issue here, I do not think that California law would allow a Board-adopted policy that placed each Board member's individually ability to review and use records at the discretion of the entire Board. I think this would violate the Corporations Code, which creates *individual* rights and duties for each Board member. Put another way, I do not believe the Board as a whole could not eliminate the fiduciary duty placed on individual Board members by law.

More importantly, this is a dispute about access, not over public disclosure. Karl's disclosure of information "normally kept confidential or privileged" is already subject to his independent fiduciary duty under law and he has never indicated that he intends to "disclose" any of the information he reviews.

> "This lawsuit is misplaced and can only result in a total waste of valuable time and >resources," Lynn summarized. "ICANN will defend itself vigorously to protect the >rights of the corporation, and the legitimate best interests of all of ICANN's directors >and of the stakeholder community."

This lawsuit resulted from the sixteen months that ICANN refused to accede to Mr. Auerbach's repeated requests to review basic corporate records. If there has been any waste, it is caused by ICANN management.

EFF believes that the Internet community should be served by an Internet naming authority that is open, transparent, and accountable. ICANN management's behavior overall has been closed, opaque, and arbitrary. We decided to assist Karl because it now appears that ICANN has failed to abide by even the most basic standards of California law -- the placement of ultimate control of a corporation with the Board, not the management.

While this would be a problem in any corporation, it is especially distressing when it concerns one of the only publicly elected members of a nonprofit corporation that has been entrusted with control over such a vital part of the Internet.

Cindy