Today's newspaper brought an interesting reflection on the troubled state of our national government.
The headline is "Copy of Magna Carta to Be Sold".
The Magna Carta was born in year 1215 and it guaranteed many fundamental rights.
Those same rights are among those that our president has trampled into the mire.
This copy of the Magna Carta used to reside in the US National Archives.
Now it is being auctioned to the highest bidder.
It seems an appropriate, but sad, mirroring of reality that with the death of the rights guaranteed by the Magna Carta that the US copy should be relinquished by and sold.
(By-the-way, the text of the Magna Carta has long been available on my DNS server, not my website, and available via simple DNS query. And some people still think that DNS is only for addresses. )
That former Chairman will have no legal relationship to ICANN; neither a director nor an officer nor an employee. Yet ICANN's voted to give this former chairman the power "to speak on behalf of ICANN". Absent a legally cognizable relationship this power is a non sequitur, an oxymoron.
And it could prove to be an expensive oxymoron for those directors who voted for it.
I note, in passing, that according to the minutes the vote of the board was unanimous, 12:0, and that the person who is soon to be that former Chairman was in attendance. Thus it appears that he did not excuse himself from this self-interested vote and did, in fact, vote to grant himself this benefit to be paid after his term expires.
Now why could this be an expensive oxymoron?
The United States tax code has provisions that are called "intermediate sanctions". These are draconian sanctions that are intended to strongly discourage Federal tax exempt corporations, such as ICANN, and their boards from granting excessive benefits to closely related parties, such as directors and executive officers.
A non-profit corporation such as ICANN has no business giving excessive benefits - ICANN is intended to benefit the community of internet users not to send former directors on junkets to Rio.
And the law says that the payment by tax exempt corporation such as ICANN of an excess benefit to a closely related party is frequently unlawful. And is there any doubt that a person who held the chairmanship of ICANN for the last six years is a very closely related party?
And what is this expense account to a former director, a person legally detached from the corporate body of ICANN, but an excess benefit?
Under the intermediate sanctions law, the gift may have to be disgorged and heavy "excise tax" could land on the directors who voted for this
And because it is a tax ICANN's insurance coverage may not apply to cover the tax that may land on the pocketbooks of ICANN's directors who voted for this boondoggle.
I've warned ICANN several times since 1999 about the risks of disregarding this law. To my way of thinking the only way that ICANN's directors and officers, and particularly their legal advisors, could claim that they did not know about this risk would be for them to admit that they have chosen not to know - a kind of self-inflicted naivety - about the legal context in which ICANN operates.
The board minutes suggest that ICANN's vaunted legal team didn't even mention the risk. But given my previous experiences with that team, I am hardly surprised. It's kinda ironic that at this same meeting ICANN voted a payment of $300,000 for 3 months legal fees to that team.
It is disappointing how frequently ICANN behaves in ways that make Enron look good.
Today ICANN put out a request for a contractor to add yet another layer of complexity, expense, delay, and unnecessary bureaucracy to the ICANN's "new Top Level Domain" process.
One can only wonder how the statement of work for this contactor was generated in advance of ICANN completing its new TLD criteria project. Is this yet another instance of ICANN's "staff" simply doing what it wants to do and ignoring ICANN's board and the community of internet users? There is definitely more than a hint of that smell.
In either case, ICANN's new TLD policy has grown beyond all rational bounds. All that ICANN should be asking is whether applicants will abide by well established technical standards and practices regarding their name servers.
In order to speed things along, I have taken the liberty of putting together the first draft of a form that ICANN could use to for TLD applications; this form also sets forth the basic terms of operation. The idea here is to dispense with all of ICANN's massively expensive machinery that reviews all of those irrelevant things that ICANN so loves to stick its nosy nose into. For example, ICANN has no more legitimate right or need to evaluate how a TLD will operate its front office registration systems than does the FAA to evaluate whether an airline serves Pepsi or Coke to its passengers.
So here it is:
This form is for use by those people and organizations that wish to obtain a "slot" for a Top Level Domain delegation in the root zone file published by NTIA, ICANN, and Verisign as provided in agreements between those three entities.
A "slot" is a right to have an applicant selected character string placed into that root zone along with applicant provided name server information as necessary to activate a domain name system delegation from the NTIA/ICANN/Verisign root zone to the applicant's own name servers.
The character string proposed by the applicant must be a valid Domain Name "label" as defined by RFC 1035, the character set for the string must be a valid "ARPANET host name" as described in RFC 1035, and the string must conform to internationalized name requirements as described in "Guidelines for the Implementation of Internationalized Domain Names".
The applicant proposed character string must not have been previously used in the NTIA/ICANN/Verisign root zone.
The applicant must anticipate that in the event that this application is accepted that it will be required to provide operational name server information before the proposed name will be placed into the NTIA/ICANN/Verisign root zone.
The applicant must also anticipate that it will be required to perform yet unspecified activities with regard to Domain Name Security (DNSSEC) deployment.
Neither ICANN, NTIA, nor Verisign will review the semantics or other meanings or uses of the proposed string. The applicant is responsible for any and all conflicts. NTIA, ICANN, and Verisign reserve the right to promptly respond to any legally valid order ordering NTIA, ICANN, or Verisign to take an action regarding the status of the applicant's slot or proposed name.
Neither ICANN, NTIA, nor Verisign will require that applicant adhere to any particular business plan or any restrictions on the use of names it may subsequently place into its own servers under the delegation obtained via this application.
The applicant must, however, recognize that the internet spans many nations and that the applicant must conform its activities to the requirements and constraints of an evolving and sometimes conflicted background of national laws, regulations, and international agreements.
By making this application, the applicant explicitly recognizes each person and aggregate entity that makes use of the internet is an intended third party beneficiary who, by virtue of this application, is entitled to have standing to bring legal actions to enforce the obligations imposed directly or indirectly through this application.
The applicant must anticipate that ICANN may impose (and, over time, modify) technical obligations on the applicant's name server operations. These obligations will define how the applicant shall operate its name servers in accord with certain broadly accepted and utilized written technical standards.
The applicant must anticipate that ICANN may impose (and, over time modify) certain obligations of fair and equitable access to its domain name service, including, but not limited to, the following:
The applicant will be required to publish to the public a signed statement from an auditor skilled in the practice of preservation of business assets that describes and evaluates whether the applicant's actual business asset preservation practices are adequate to allow the applicant or a successor in interest to revive the applicant's name services and client base should the applicant or its systems suffer a human or natural disruption.
The applicant must recognize that the total number of top level domains, albeit large, is finite and that ICANN may impose constraints on the number of applications that may be accepted at any one time.
All applications, except those that are explicitly rejected, will be maintained in an active status.
ICANN reserves the right to utilize various mechanisms to chose among the active applications. Among these are auctions in which active applicants may bid for a slot or a lottery in which a limited number of random selections may be made among all active applications.
ICANN has recently collected comments for yet another study of when, if ever, it will charter any new top level domains (TLDs) for the internet.
It is bad enough that ICANN has stalled and stalled and stalled - for nearly a decade - on what ought to be a relatively easy task.
(As I have written before, ICANN should merely validate that an applicant for a TLD will adhere to broadly accepted written technical standards and practices relating to the operation of domain name servers. Anything beyond that is social and economic engineering, an area that should be prohibited to ICANN.)
Of course, when it comes to ICANN, those who pull the puppet strings - most particularly the incumbent TLD registries, who do not want any competition from newcomers and the intellectual property protection industry - have an interest in permanently maintaining the status quo. Consequently when it comes to TLDs ICANN is static.
Apparently some people are getting tired of ICANN's immobility - One of the year 2000 applicants who has spent the last 7 years in ICANN's limbo between acceptance and rejection has sent ICANN a letter asking for ICANN to live up to its promises. My guess is that we will soon be seeing similar letters from the 39 others who ICANN left in limbo back in year 2000.
The comments themselves reveal interesting things.
First is that form-letter submissions are not very persuasive. Many who commented simply regurgitated exact replicas. This is not to say that these people are insincere or that the opinions expressed in their letters are not very important. I'm merely pointing out that when arguing to a body that operate as if it were under siege, form letters feed the siege mentality's predilection to instantly reject anything less than servile agreement. In the future those who put forth form letters would perhaps be better served by creating a web tool that uses a database of pre-written phrases and combines them into a unique letter for each person.
Second is that both ICANN and many of those commenting seem bent on imposing their view of what the internet ought to be onto the rest of us. In their eyes ICANN is an engine of limitation rather than an engine of innovation.
Some, such as ICANN's chairman, believe that we have enough generic top level domains and no reasonable person could ever more. I'm sure that kind of view prevailed at United, Delta, and American airlines when Southwest and JetBlue were yet unborn twinkles in entrepreneurial eyes. Yet, had that view held back in the 1970's the internet would never have been born - why should we have permitted yet another communications medium; telephone, faxes, and telexes were clearly sufficient for the needs of any reasonable person?
And another comment suggests that by using names for TLDs that we risk exhausting opportunities in the future. That seems to be the "look at the pretty resource, but don't use it" approach. Given that we have more than 11,144,421,984,854,529,111,291,814,965,840,121,701,917,784,688,171,700,627,654,810,062,931,821,453,496,825,690,394,892,284,041,625 possible TLD names available, I sincerely doubt that we will be exhausting the space of creative opportunities very soon.
Then we have comments that argue that the internet is merely a dependent child of the trademark industry and that any name on the net should be subordinated to a rule that is best expressed as "trademark uber alles."
Pygmalion carved a statute so beautiful that he fell in love with it.
Procrusteas had a nasty habit of making everyone conform to his iron bed; if you were too tall, Procrustes lopped off your hands and feet; if you were too short, you were stretched on the rack.
Clearly some of ICANN's board members and some of those commenting are neo-Procrusteans who have fallen in love with the internet as it was during its glamour era - the days of the 1980's when the internet was believed to have been (but, in reality was not) a place of gentle beauty and halcyon peace.
But there is a deeper, and more ominous hue reflected in the comments - it is the hue of constraint, of foreclosure of ideas and innovations. It is a hue reflective of the kind of fundamental religious thinking that shoots canons at ancient statues and denies the right to exist to any but those who hew to the one true religion.
The statue of the internet that ICANN is carving is not lovely except to those who believe in rigidity and constraint and who would deny to others any freedom of imagination or creativity.