At-Large Representative for Canada and the United States on the
ICANN Board of Directors
Karl Auerbach

Diary - March 14, 2002
Accra, Ghana

I am writing the initial draft of these notes on the same day as the public meeting in Accra, Ghana.  I am completing these notes on March 17.

Due to a family emergency, I elected to not go to Ghana but, instead, participated by telephone.

The preliminary report of the meeting may be found at: http://www.icann.org/minutes/prelim-report-14mar02.htm

It has always been the case that the actual matters before the board are generated within the last few days.  However, at this meeting that practice reached a new low - the resolutions were not posted to the public at all and most were available to Directors only a few hours in advance.  In fact some were made available only at the start of the meeting.  One can not say that there was any time for quiet and deep consideration or for any consultation or discussion.

I was able to post a copy of the proposed resolutions on my web site before the meeting had progressed very far.  As far as I know, my web site was the only place outside of Accra where the public could see the proposed resolutions while they were being discussed by the Board.  I need not comment on what that says about ICANN's lack of respect for the public.

At the Stockholm meeting  I was prevented from submitting two resolutions by virtue of an unwritten, arbitrary, and ad hoc rule that required my proposed resolutions to be visible to the public for at least 48 hours.  However, it seems that when "staff" writes the resolutions, as they did at this Accra meeting, that there is no such obligation.  Not only is this an insult to the public and an abandonment of even the most primitive conception of public comment, but it replaces fair and impartial rules with a most discriminatory practice.  Unfortunately, this was not the only retrograde act of ICANN at this meeting.

I am not surprised to see this discrimination against me, it is nothing new.  ICANN has refused to publish any of my written materials on their web site despite my requests for them to post them.  Among these materials are my testimony to the Senate of the United States, my presentation to the US National Research Council on aspects of naming, my suggestions to quickly and inexpensively deal with DNS security, and A Prescription To Promote The Progress of Science and Useful Arts.  And of course, ICANN is still preventing me from inspecting the corporate financial records.

Looming over this meeting was the specter of the President's "roadmap" to reform ICANN.  Although that is just a discussion document, two of its large goals - the eradication of public participation in ICANN and the elimination of the Independent Review Panel - major reversals of years of ICANN policy - suddenly appeared among the resolutions and, as we saw, were adopted.

Destruction of Public Participation in ICANN

The first resolution was a doozy - it amounted to a repudiation of all the promises that ICANN had made over the years about public participation; it violated the compacts made when ICANN was formed that obligated ICANN to establish a meaningful at-large; it simply erased the work of the Membership Advisory Committee, the At-Large Study Committee, the NAIS study, as well as the millions of dollars spent on these works.

What occurred was that ICANN declared itself to be a self-perpetuating oligarchy.  ICANN declared that the users of the Internet are incapable of making informed choices about internet matters that may affect them and that such decisions must be made by a superior class of people who know better.

ICANN's President likes to speak of ICANN's mission and how "process" (such as having an at-large) gets in the way.  What he fails to see is that ICANN's mission is the establishment of processes.  Anyone who has observed any decision making system has seen that the procedures often dictate the result.

I questioned the commitment of ICANN management to the at-large, particularly the degree of its enthusiasm as it worked to fulfill its role under resolution [01.130] to begin preparatory work on at-large elections.  I wondered how much work management could have performed when much of it was flying around the planet in a secret and expensive effort to build and proselytize the Lynn restructuring plan.  This question elicited a response from the President in which he claimed that much planning had been done.  I examined the materials he referenced and saw no evidence of the accomplishment of anything more substantial than some vague cost estimates.

I have trouble giving much credence to claims from ICANN's President that he seriously looked at how to have an at-large election when he was at the same time working so hard writing a plan to eliminate the at-large.

Then again, from my experience with ICANN's President, it is my business judgment that he frequently evades his responsibilities and asserts that he will do something when he has no intention of ever initiating, much less completing, that work.  For instance, last summer I gave a written warning to ICANN's Board and to the President that ICANN is following a course that could lead to the imposition of massive tax penalties, the loss of its tax exempt status, and the loss of the ability to claim attorney-client protection.  The President said he would bring in an independent expert to examine the situation.  However, it is now eight months later and there is no sign that anything has been done.

I voted against this resolution.

ICANN Evolution and Reform Committee

In February of 2001 I testified to the Senate Commerce, Science and Transportation Committee, Communications Subcommittee that:

ICANN is ill designed,

has been ill operated,

has brought upon itself significant ill will within the Internet community,

and has greatly exceeded its proper scope.

I believe that significant restructuring of ICANN is needed so that the corporation can fulfill its purposes and fulfill its obligations towards its stated beneficiaries.

It took ICANN's management more than a year to catch up and agree with me that ICANN needs restructuring.

But restructuring without planning is an invitation to disaster.

Imagine that you wake up one morning in your house with the sudden urge to remodel everything.  Would you immediately start ripping down walls and plumbing while buying new appliances and furnishings?  Or would you make plans first?

ICANN's management seems to think that they must remodel ICANN without any comprehension of the goal.  This is worse than wasteful; it is more than foolish; it is stupid.

Unfortunately we are not talking merely in the future tense: ICANN's president recently presented something that he called a "roadmap for reform".  How much money he may have wasted in the creation of this monstrosity has yet to be tallied and it may never be known to the public - or to the Board of Directors.  Whatever the amount, it is certain that it is large - and ICANN's finances are apparently rather weak.  This plan was created in a vacuum - it is a plan without an agreed purpose.

This resolution posits a YAIC - Yet Another ICANN Committee.  Yes, ICANN needs to be reorganized.  But the work needs to be as broadly based as possible and not bottled up in a committee that, if ICANN's previous committees (the original Membership Advisory Committee excepted) are an example, will be as opaque as a boulder, and about as creative.  A committee is likely to become simply a vehicle that is more easily dominated by the demonstrated silly-thinking of ICANN's management as that management attempts to build itself into a permanent, and ever-growing bureaucracy with layers of opaque insulation between itself and public oversight.

I voted against this resolution.

Approval of the Security Committee

Last fall, at ICANN's Annual Meeting in Los Angeles, I outlined several steps that could be taken quickly and inexpensively to protect the domain name system.  See: Protecting the Internet's Domain Name System.

I feel that the commitment of ICANN's management to security is real but inadequate.   It is my opinion that management's commitment is diluted by a desire to use this issue to make headlines and expand its bureaucratic empire.

If ICANN's management were to show signs that it really intended to deal with DNS security, then I would be an enthusiastic supporter of the Security Committee and would have voted for this resolution.

I voted against this resolution.

LACNIC Application and Transition Plan

I abstained: I simply have not had the time to learn enough about this issue to make an informed decision.

Redemption Grace Period

I think that this is a very good idea.

The resolution however, gives discretion how to implement it to ICANN's "staff".  And that is contrary to ICANN's by-laws in which the determination of DNS policy is vested in the DNSO.

So I questioned why this determination was assigned by the resolution to "staff" rather than the DNSO.  This engendered discussion and the sense of the board was that ICANN management ought to not work in a vacuum but, instead work closely with the DNSO on this.  Of course, whether ICANN's "staff" actually does this in a way that is more than a charade is something yet to be seen.

I voted for this resolution.

.org

The DNSO has issued recommendations about how .org should be handled.  The resolution did not reference those recommendations.

The DNSO is, under ICANN's by-laws, the source of policy for the domain name system.  And the fate of .org is certainly within the scope of the DNSO's authority.  If the Board disagreed with that policy, the Board is obligated by the by-laws to return the matter to the DNSO unless the board makes a finding of overriding necessity, a finding that the Board did not make.

I raised the issue of the DNSO's recommendations.  It was ignored.

I made it clear that I felt that .org should remain an open TLD, that no conditions be placed on those who wish to enter new names into .org or to renew existing names.  I would have preferred that this policy be written directly into the resolution.  However, board appeared to agree that rather than taking the time to amend the resolution that the board express its sense that ICANN management follow that expressed policy.  We will soon find out whether ICANN's management follows that expression.

I voted for this resolution.

.pro Agreement

I abstained: I simply have not had the time to learn enough about this issue to make an informed decision.

I had heard that .pro had changed considerably between the time it was initially presented and this contract.  If that were the case I would be very hesitant - such changes are not fair to the applicants who were not selected.  And this is not the first time this question has been raised; the .name TLD also appeared to undergo a material change between the proposal and the agreement.

Independent Review Panel

This resolution stops the well advanced process of creating an Independent Review Panel and sends the entire concept of Independent Review to its likely demise inside the ICANN Evolution and Reform Committee.

The Independent Review Panel, like the At-Large, was part of the original structure upon which ICANN was formed.

As a general matter corporate management does not want anyone second guessing its decisions - it cramps its ability to be arbitrary and capricious.  To many within ICANN, the creation of an Independent Review Panel could be perceived as fatal to their positions as  Don Giovanni's invitation to the Commendatore's statue.

A prior Board established a plan of  Byzantine complexity to select the panel.  Apparently (according to Louis Touton's report on the matter) of the six people selected to nominate the panel, half were lacking vital signs.

This minor, and easily remedied, administrative failure provided a convenient excuse to entirely eliminate the feared prospect of an Independent Review Panel.

We have seen that when ICANN's management lacks the will or desire to do something - like have At-Large elections or to impanel an Independent Review Panel - it will elevate failures of its own making into excuses to evade and destroy whatever it is that management finds not to its liking.  Because the Board seems unwilling to put an end to this practice it is likely that it will continue to be used.

I voted against this resolution.

Geographical Names in .info

I don't believe that there should be a governmental set-asides inside commercial TLDs when there already exist ccTLDs.

I voted against this resolutions.

Retention of Auditors

It is my business judgment that KPMG is has shown itself to be unqualified to render a believable financial opinion and  that it may be acting in thrall of ICANN's management and unwilling to make its own independent inquiries.

I nearly fell out of my chair to hear ICANN's president assert that ICANN's finances were somehow too complicated for the average auditor.  That assertion is a variation on the now tired ICANN's party line that because ICANN is tied to the Internet the old rules don't apply and that ICANN should be held to some new, unwritten, and extraordinarily lenient standard.

Any reasonable accountant can recognize questionable income - such as revenues based on nothing more than an unenforceable pledge card signed by someone who possibly lacks the authority to make a legally binding commitment, particularly when the entity being committed has a linkage to a sovereign nation.

And any reasonable accountant can recognize questionable cash flows - such as when the DNSO uses ICANN as a "bank" to manage both incoming and outgoing payments without those flows being on the ICANN budget or even clearly visible to the Board of Directors.  Because KPMG was made aware of these questionable flows, in writing, early in 2001, KPMG can't excuse its lack of inquiry by claiming ignorance as Andersen did with regard to its rather blind audits of Enron.

And any reasonable accountant can  recognize payments, potentially measured in terms of millions of dollars, made in possible violation of the law - laws such as 26 USC 4958, involving the payment of excessive payments to disqualified persons - such as I reported to ICANN back in August of 2001 and upon which ICANN's management has apparently taken no action despite assurances to the contrary.

I voted against this resolution.

Thank You's of Various Kinds

These meetings take a great deal of work to put together and those who worked hard deserve to be recognized.

I voted an enthusiastic "yes" on all of the "thank you" resolutions.


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2002 Karl Auerbach, All Rights Reserved.
Updated: Sunday, March 17, 2002 08:41:35 PM