Full recognition of at-large members as "members" under California law.
Remove discretion from "staff" and substantially reduce the discretionary powers of executive officers.
Robert's Rules of Order (modified to work in an electronic context) rather than chaos.
As a general matter, I value procedure very highly - It is my belief that good procedure leads to good decisions. Now, I don't mean that a "good" decision is one that satisfies everyone. Rather, I believe that a "good" decision is one in which every person feels that he or she has had a fair chance to make their position heard, that the decision maker actually did consider all points of view without prejudice, and that those who didn't get what they wanted are willing to accept the decision.
Thus, the larger part of my platform is the reformation of ICANN and its procedures. However, I also believe that ICANN will be unable to be reformed until certain personnel changes are made.
And I do have some opinions on policy matters themselves.
To a large extent I am a firm believer that government is the proper embodiment for public debate and public policymaking - to my mind a body such as ICANN is Internet government no matter how many "private corporation" flags it might try to fly.
And I am not one who reacts with an instant "way to go" when someone utters the words "deregulation" or "privatization". My studies of our history have taught me that private industry and private behavior are not always for the general good, that regulation, indeed governmental regulation, must sometimes be imposed to protect the public from certain self-interested actions of the few.
On the other hand, I do believe that governmental bodies ought to keep their fingers out of things that don't need the active oversight and regulation. To a large degree I feel that the Domain Name System of the Internet needs no regulation, that economic and social forces will cause it to evolve in "the right way" without the intrusive and controlling efforts of a governance body such as ICANN.
As such you may find that my point of view is bimodal - If I find that something needs regulation, I tend to believe that it ought to be done by a governmental body, or at least a body that isn't afraid to recognize that it is like a government (and thus must operate with notions of "due process".) But if I find that something does not presently need regulation, I tend to take a rather more libertarian, hands-off approach.
My own personal politics tend towards the liberal or "green" point of view.
But when it comes to financial matters, I firmly believe in sound practices with strict controls. I have found ICANN to be lacking in financial common sense.
Oh yes, one more thing - I am willing to be convinced that a position I might espouse is ill advised and I'm willing to change my mind.
To my mind, one of our greatest strengths is that of the individual person to have an idea. Creative thought is the province of individual human beings. I have never seen a corporation have an idea. I have never seen an association or club have an idea. The only thing on this planet that can have a creative thought is a living, breathing person. It is time for ICANN to open itself up so that individual people - you and I - can meaningfully participate in the development of policies that impact how we use the Internet.
Over the last hundred years we have seen corporate entities receiving more and more "rights" that were previously available only to individual people. In ICANN we see that trend reaching a point where corporate entities are now receiving more rights than do individual people. That is wrong.
ICANN was in need of reform before it was even created - its initial structure was the creation of a secretive process that both actively and passively excluded any but those who were insiders to the process. The Boston Working Group, which I co-founded, attempted to deal with a very limited set of these pre-creation problems. Most of our proposals were ignored by ICANN and those that were adopted have been silently removed, ignored, or emasculated. For example, ICANN is as secretive as ever.
In the 18 plus months since ICANN's formation numerous other structural and operational problems have been revealed. Not the least is the capture of ICANN by special interests - particularly pro-trademark groups and name registries and registrars.
ICANN's decision at the Yokohama meeting to revisit the entire at-large structure, with even the existence of the at-large up for reconsideration, is a very clear symptom of the extent to which ICANN has become a tool of those who want the Internet to be nothing but a mindless shopping mall in which users are reduced to mere purchasers of trademarked products and restrained from having any say in how the Internet operates, what its policies might be, or even, who gets access.
An "open" process is one in which all interested parties can participate in a meaningful way and as equals to all other parties.
A "transparent" process is one in which the entire decision making process, from inception to closure, is revealed and recorded. To be fully transparent, a process must reveal inputs, issues, criteria, biases, misunderstandings, evolution of decision maker positions, compromises, votes taken, etc, etc.
An accountable decision maker is one who is both identifiable and can be held to account for his/her decisions. Board members are typically made accountable by elections and recalls - assuming that the electorate can obtain enough information to evaluate how their board members have performed. Staff members must be held accountable by the board.
One could look long and hard. But one is unlikely to find an organization that spends as much effort as ICANN does actively rejecting these principles.
It is my position that ICANN must operate with absolute openness, transparency, and accountability. This means that absolutely every input, every discussion, every decision - everything - must be done in open session with a written or electronic record. All decisions must be made by recorded vote - with the position of each director clearly shown.
The only exception to this would be matters pertaining to personnel and litigation. And even a decision that a matter falls into those categories must be made in public.
In addition, actions by "staff" are the epitome of non transparent and non accountable decision making. ICANN's staff must be required to operate according to the same principles and the board must be obligated to adopt, on the record, staff actions.
Under California law, "members" of a non-profit/public-benefit corporation, such as ICANN obtain several rights.
ICANN's staff prepared the following list of these rights. (The numbers in parenthesis are the relevant section of the California Corporations Code.)
A meeting of members must be held in each year in which directors are to be elected. (5510). Members may apply to the Attorney General to order such meeting if not timely held. (5510)
Special meetings of members may be called by 5% of the members. (5510)
Members are entitled to written notice of member meetings. (5511)
Members may act by written ballot except to cumulatively vote for directors. (5513)
Proxies are allowed unless withdrawn by bylaws or articles. Proxies may be limited by articles or bylaws. Proxies are revocable. (5613)
Members may bring derivative actions, subject to the usual conditions. (5710) No bond shall be required if enough members bring the action. (5710)
Most amendments to articles must be approved by Board and members (and any other persons specified in articles). (e.g. SOs). (5812)
Board must send annual report (as defined in 6321) to members within 120 days after the end of the fiscal year. (6321)
Membership lists and accounting books and records and minutes must be made available to members for proper purposes. (6330, 6333 and 6338)
Members may amend the bylaws; however, the bylaws may provide that the amendment may occur only with the approval of a specified person other than the Board. (e.g. SOs). (5150) Note, however, that the Board may amend the bylaws without the approval of members unless the action would materially and adversely affect the right of members as to voting or transfer.
Directors elected by members may be removed by members. (5222)
The bylaws must specify a quorum requirement. (5512)
Members can bring legal actions to determine the validity of elections. (5617)
Section 5056 of the California Corporations Code normally defines who is a "member" of ICANN: [emphasis added]
5056. (a) "Member" means any person who, pursuant to a specific provision of a corporation's articles or bylaws, has the right to vote for the election of a director or directors or on a disposition of all or substantially all of the assets of a corporation or on a merger or on a dissolution unless the provision granting such right to vote is only effective as a result of paragraph (2) of subdivision (a) of Section 7132. "Member" also means any person who is designated in the articles or bylaws as a member and, pursuant to a specific provision of a corporation's articles or bylaws, has the right to vote on changes to the articles or bylaws.
(b) The articles or bylaws may confer some or all of the rights of a member, set forth in this part and in Parts 2 through 5 of this division, upon any person or persons who do not have any of the voting rights referred to in subdivision (a).
(c) Where a member of a corporation is not a natural person, such member may authorize in writing one or more natural persons to vote on its behalf on any or all matters which may require a vote of the members.
(d) A person is not a member by virtue of any of the following: (1) Any rights such person has as a delegate. (2) Any rights such person has to designate or select a director or directors. (3) Any rights such person has as a director.
This makes it pretty clear that the California legislature, with the consent of the governor, have determined that it is a good idea for people who vote for board positions to also have rights to make sure that the corporation is properly run.
However, ICANN has attempted to avoid the clear meaning of this statute.
They do this through a two part bit of legerdemain:
First, they simply declare that members are not "members"!: [emphasis added]
ARTICLE II: MEMBERSHIP
Section 1. GENERAL
The Corporation shall not have members as defined in the California Nonprofit Public Benefit Corporation Law ("CNPBCL"), notwithstanding the use of the term "Member" in these bylaws, in a selection plan adopted by Board resolution, or in any other action of the Board. Instead, the Corporation shall allow individuals (described in these bylaws as "Members") to participate in the activities of the Corporation as described in this Article II and in a selection plan adopted by Board resolution, and only to the extent set forth in this Article II and in a selection plan adopted by Board resolution.
Second they focus on the italicized words of 5056(a): "pursuant to a specific provision of a corporation's articles or bylaws" and "right to vote":
ARTICLE II: MEMBERSHIP
Section 2. Plan for Selection of Five "At Large" Directors in the Year 2000
Five persons shall be nominated and selected by no later than November 1, 2000, to become "At Large" Directors according to a selection plan adopted by the Board. They shall be seated at the conclusion of the Annual Meeting of the Corporation in 2000.
This so-called "selection plan adopted by Board resolution" is nothing less than the election in which we are all participating right now.
By avoiding even the use of the word "election" (and using "selection" instead) the ICANN side-show artists are attempting to claim that there isn't even any voting going on - and you will note that the California statute depends on people having a "right to vote".
One has to be pretty silly, or stupid, not to recognize that there is, in fact, an election going on. But ICANN is depending on blind acceptance of their artifice.
By placing the definition of the selection/election process into a "plan adopted by Board resolution" ICANN is trying to claim that the selection/election is not made "pursuant to a specific provision of a corporation's articles or bylaws".
This is a legal shell game that has no purpose except to evade the clear intent of the California law and to eviscerate the rights accorded to people who are in all senses of the word, "members" of ICANN.
It is a shell game that should be stopped.
There are those who say that if ICANN has members that ICANN will be subject to derivative lawsuits. I agree. I believe that ICANN should be subject to derivative lawsuits - that is simply part of the cost of being accountable. ICANN can avoid being liable to such lawsuits simply by acting properly and conforming its actions to the dictates of law.
One might also want to remember that the bulk of ICANN's expenses have been to pay legal bills - and these costs have been incurred to create precisely the kind of prejudicial rule that we've been talking about here. And since we, the Internet users, will ultimately bear ICANN's costs, we will ending up paying for the costs of our own disenfranchisement.
Today most of the substance of ICANN's actions are determined by ICANN's "staff" - working in secret, working with unknown third parties, possibly making unknown deals.
In well run non-profit organizations, "staff" is used to carry out the will of the Board of Directors. In such organizations, "staff" has very little discretion.
In ICANN's case, the Board of Directors has essentially abrogated its duty to set policy and has relinquished decision making power. As a practical matter, ICANN's board exercises neither oversight nor independent review of "staff" actions.
This is wrong.
I advocate that ICANN's "staff" be substantially reined-in, that its discretionary powers be reduced to a minimum, that "staff" have no power to consummate any significant actions without express and explicit approval by the board.
Consensus based decision making requires a great deal of trust in the person who evaluates whether consensus exists. ICANN has become a cauldron of competing interests with a history of practices are, at best, questionable.
There is no trust within ICANN that is adequate to support consensus politics.
The principle of accountability requires that one be able to ascertain what board member supported what decisions. Consensus decision making makes that nearly impossible.
It is important that all bodies within ICANN - the board, the staff, the Support Organizations, the "Councils", the "Assemblies" - all of these need to abandon the adherence to soft and fuzzy - and pliable - consensus decision making and use clear voting on clearly articulated issues.
Electronic discussions often devolve into little more than disorganized chaos.
This problem has been solved in non-electronic contexts through the use of procedural rules, such as Roberts Rules of Order.
Mark Langston and others have examined Roberts Rules and have come up with modifications that are appropriate for use on e-mail forums.
ICANN, in all of its bodies - from the board to the councils, from the working groups to the assemblies - ought to abandon its vague, and pliable, "consensus" mechanisms and start using orderly processes including, when needed, counted votes on clearly stated questions.
The original ICANN proposals contained a provision for a Chief Technology Officer. This was a good idea. It gives the board a source of technical knowledge upon which it might rely.
Apparently there was a secret reservation in the minds of some ICANN founders that the office of CTO would be reserved for the late Jon Postel, and only for Jon Postel. (This reservation is not written on any publicly visible ICANN document nor was it ever publicly expressed by the proponents of ICANN. The fact that such an unwritten reservation existed raises serious questions about what other secret reservations may still be waiting to surface.)
During a recent ICANN budget cycle, there was a quiet change to ICANN's structure in which the role of CTO was eliminated citing the unavailability of Jon Postel to fill the position.
It is sad that Jon died. But his death does not diminish the need for a CTO within ICANN.
Various third parties, usually associated with the Protocol Supporting Organization (PSO), argue that the PSO fills the CTO's shoes. That would be improper because the scope of the PSO is merely disputes over protocol numbers selected by standards bodies - as such it is unlikely to be an ecumenical or impartial view of all technical issues.
The principle of accountability requires that all members of the board of directors be subject to the will of the electorate for decisions made during their term.
That principle is violated when there is a person on the board of directors who has obtained the seat not by virtue of any election.
The President/CEO is present merely to execute the will of the board. It is wrong for the President/CEO to be given voting privileges without the balance of being held responsible for how that vote is used.
The President/CEO ought to be generally allowed by the board to be present at board meetings (except those pertaining to personnel matters concerning the President/CEO) - it will improve the clarity with which the President/CEO understands his/her duties and assignments. But it ought to be clearly known that such presence is merely a courtesy that is extended by the board and may be modified or revoked as appropriate.
Money flows through ICANN at a prodigious rate, mainly into the pockets of its expensive law firm and its overpaid President/CEO.
ICANN must adopt clear and solid business practices.
It is my intent to initiate a business process audit of ICANN to examine its financial controls and to establish such controls where there are lacking. The results of this audit must be made public.
It is my intent to have every ICANN expense subject to a "frugality" process to eliminate unnecessary travel and marginal value expenditures.
Salaries, particularly that of the President/CEO, must be brought into alignment with market rates.
ICANN has an Address Supporting Organization (ASO) the job of which is to deal with IP address assignment concerns.
One of ICANN's original board members caused the creation of distinct "Ad Hoc Addressing" group that is beyond the scope of ICANN and outside of the ASO.
This group is duplicative of the ASO. This "Ad Hoc" group is not accountable nor is it open or transparent.
There is no reason for the "Ad Hoc Addressing" group to exist at all. Those who wish to discuss IP address policies should do so in the proper context - the ASO.
The "Ad Hoc Addressing" group should be terminated.
I am appalled at some of the garbage that some participants post on mailing lists. There is no excuse from behavior that is obscene or defamatory.
However, I do not believe that the response should be official censorship - as occurs when someone is blocked from posting by some arbiter of good taste or appropriate content.
Rather, I believe that shunning is more appropriate - that each of us ought to make our own decisions about who is offensive and who is not. And that each of us use the technical tools that are present in virtually all modern e-mail readers to block those who we find offensive.
Any record or archive of an ICANN related e-mail list or discussion forum ought to contain the uncensored, unedited content of the list.
Jones, Day, Reavis & Pogue is ICANN's law firm, and has been so since the day of ICANN's birth. Indeed Jones-Day actually performed the incorporation ceremony in its Los Angeles offices.
Jones, Day, in the person of its principle man-on-the-ICANN-scene, Joe Sims, was present for at least half a year before ICANN was born, working in the shadows, responding to unknown interests and possibly making unknown deals. About all we know about that period is that those who were not insiders to Joe Sims process were ignored and that those who objected were treated with condescension and abuse.
Over the life of ICANN, Jones, Day has been the the dominant creditor of ICANN.
Even now Jones, Day continues to receive a lion's share of every dollar that flows into ICANN.
And one of Jones, Day's partners, Louis Touton, left the firm to become ICANN's Vice-President, Secretary, and General Counsel.
There is in my mind a question about the appearance of propriety.
As a member of the board of directors I would have the right to rely upon the expertise of entities such as ICANN's law firm - that is unless I felt that I was not receiving the degree and quality of advice that, in my opinion, I felt would be necessary for me to properly exercise my duties. Given my interactions with Jones Day, I do not feel comfortable relying on their work.
There are many good people at Jones, Day, and I have no doubt that much, if not all, of its work is adequate. But the firm has no special credentials to offer to ICANN. And its services have been , to my mind, extremely expensive, not simply in terms of dollars but also in terms of the alienation that has been created between ICANN and the public.
Consequently, were I on the ICANN Board of Directors, I would work to replace Jones, Day, Reavis & Pogue.
Louis Touton left a partnership position at Jones, Day, Reavis & Pogue to become ICANN's Vice-President, Secretary, and General Counsel.
I believe that ICANN would be better off without him for the following reasons.
First, it has been my experience that it is a bad idea, both from a legal and business perspective to have the corporate counsel involved in non-legal operations. It tends to defocus both points of view.
Second, I have found that this person continues the tradition of condescension and uncooperativeness that has been the hallmark of ICANN's officers since the outset. ICANN needs people who build relationships without first looking at the social register or statements of net worth.
Third, in my personal interactions with this person, I have found him to be evasive and unwilling to provide even the most basic of information. I do not have confidence in him.
In addition, Mr. Touton has been an architect of ICANN's efforts to remove membership rights. See the section entitled "Full recognition of at-large members as "members" under California law." in this platform.
As a member of the board of directors I would have the right to rely upon the expertise of people such as ICANN's legal counsel - that is unless I felt that I was not receiving the degree and quality of advice that, in my opinion, I felt would be necessary for me to properly exercise my duties. Given my interactions with Louis Touton, I do not feel comfortable relying on his work.
Mike Roberts is ICANN's President and CEO, and as such he receives an automatic seat on ICANN's board. He holds a "temporary" position - one that he has held since late 1998 - nearly two years.
There is nothing positive I can say about Mike Roberts. I have never had a positive interaction with him. I have rarely heard a statement from him that I believe is not laden with hidden agendas, unstated definitions, silent reservations, and secret conditions. And I have heard him proclaim, without any showing of evidence, that there was "consensus" for some policy decision when it was clear to me, and to others, that opinion in the internet community was far from agreement.
I have observed him at the helm of ICANN's business processes and believe that if ICANN had been a for-profit entity, it would have long since turned turtle and sank in a sea of red ink.
I believe that Mike Roberts has done an outstanding job of creating ill-will towards ICANN and distrust of ICANN's actions.
Under Robert's hand, ICANN's "staff" has assumed virtual control of major policy decisions. This staff operates nearly in total secrecy and without any form of public review.
ICANN doesn't need this kind of "temporary" executive.
In addition, Mr. Roberts has been a tireless architect of ICANN's efforts to remove membership rights. See the section entitled "Full recognition of at-large members as "members" under California law." in this platform.
The DNSO is controlled by those who make money from domain names and trademarks - there is no real means by which those who simply use the Internet or who are individual owners of domain names can participate except in token roles.
The DNSO's General Assembly is presently a useless, voiceless, powerless body. Over its lifetime the GA has served only as a posterchild that the Names Council drags out whenever it wants to fabricate some kind of public support for the GA's decisions.
That is wrong.
The General Assembly must be able to establish its own processes free from interference by the Names Council, in particular the GA should have the freedom to establish its own nominations process for the DNSO's seats on the ICANN board.
No issue should pass out of the DNSO unless it has been approved by the General Assembly.
DNSO "constituencies" reflect a pre-conceived notion of who ought to be permitted to have a say in how the Internet's Domain Name System is run and who gets access to DNS.
Constituencies ought not to be the result of someone's pre-conceptions, but rather ought to reflect actual groupings of interests.
Since interests change, there ought to be no formalized "constituencies" at all. Rather, every person who wants to participate in DNSO matters ought to be able to do so and have a vote. If that person wishes to align himself/herself with others of similar mind, then that person may do so. If that person wishes to break past alliances, he/she ought to be free to do so.
The key is the principle of one-person-one-vote.
Corporations and associations ought not to get a vote - they ought to operate through people who voluntarily chose to cast their vote in accord with what the corporation or association wants.
It is unlikely that my point of view - that there ought to be no formal constituencies whatsoever - will prevail. Consequently my fallback position is this:
Every constituency in the DNSO should expire yearly and have to repetition for recognition.
There should be new constituencies for the following groups:
Individuals who own domain names
Political and social groups
All policies of the DNSO ought to expire every two years. Expiration may be avoided if within the six months prior to expiration, the DNSO votes to give a two year extension.
Have you ever considered what ICANN does with respect to "protocol parameters"?
It does two things:
First, ICANN runs a clerical service to write down numbers in a registration book.
Where does it get these numbers? From the IETF. ICANN calls this "IANA" - but its really simply a clerical service in which the IETF comes up with a number, sends it over to ICANN's IANA, and it gets written down. There's no creativity involved - technical or otherwise. Sometimes the IETF lets this clerical service give numbers to third parties, in which case the IETF typically gives some not very complicated instructions such as: "add one to the previous number and assign the result". For more complicated things, the IETF designates an "expert" to which ICANN's IANA must go to ask what to do. ICANN provides this service free of charge.
The second thing ICANN does with respect to "protocol parameters" is to have a "Protocol Supporting Organization", the role of which appears to be moderating disputes, should any arise (none ever has) between standards bodies regarding one of those numbers mentioned in the preceding paragraphs.
It strikes me that ICANN, a worldwide policy making body, the epitome of Internet Governance, ought not to be running something as mundane as a clerical registry on behalf of one standards body.
The role of the Protocol Supporting Organization is to deal with disputes between standards bodies over "protocol parameters".
Since these parameters are merely numeric values there has never, in the entire 30 year history of the Internet, been a dispute between standards bodies over a protocol parameter.
Consequently, there is no need for a policy organization to deal with this issue.
ICANN should not try to use the PSO as some sort of technical advisory committee to ensure at the work of the DNSO and ASO conforms to some notion of Internet technical purity - that job should be performed with the DNSO and ASO and by the board with the assistance of an ICANN CTO.
ICANN needs money to operate.
ICANN ought to receive compensation for services rendered.
ICANN has no hesitation to demand such compensation in the context of the Domain Name System or IP address allocation.
However, ICANN does not request compensation for the service of registering protocol parameters. Indeed, to the contrary, ICANN underwrites the cost of such services on behalf of the IETF.
This is not right. The IETF ought to pay ICANN for the reasonable cost of IANA protocol parameter registration services.
This word "stability" has been bandied about, mainly by those opposed to new Top Level Domains, as a reason to "go slow" or to "do testing" to otherwise impose impediments to the quick rollout of new TLDs.
Yet no one has bothered to define what "stability" means and who are the beneficiaries.
Let me begin by remembering that the Internet was designed to survive nuclear holocaust. The net was designed so that even if part of it was vaporized (literally) it could continue to function.
DNS has that same characteristic - DNS has massive redundancy and caching. And even if part of DNS were to fail, the rest of the system will continue to operate and provide service.
DNS as a technology is very robust, even with hundreds of thousands, and even millions of new TLDs. Live experiments and day-in-day-out operations of expanded DNS systems distinct from that operated by ICANN have demonstrated that DNS technology itself is not a source of potential "instability".
So what could be this thing called "instability".
First: Let us distinguish between stability of a DNS root from the stability of a DNS TLD.
Stability of the DNS root can be achieved in one of two ways, and these ways are not mutually exclusive, they may coexist:
Professional grade operations - good computers, good operations, good facilities, good procedures, good connectivity, external backups, alternate sites, etc.
Multiple systems of root servers.
(The latter has been a subject of controversy.)
The current DNS root used by just about everyone on the Internet has been operated informally for years - it has never suffered a major failure. (There have, however, been failures in TLD operations, which is a distinct thing.)
And I have never seen a failure in any of the more informally run root systems that I use (and which are used by the computer delivering these web pages to you).
So, I think it would be an error to be in a panic about the stability of the DNS root even if we were to add hundreds of thousands or even millions of new TLDs.
Second: Let us examine "stability" of a TLD (as opposed to "stability" of the DNS root):
Who reaps the direct benefits of "Stability"? There is no duty on the part of content providers to make a web page visible at a given URL. A content provider is totally free to rename pages or to delete them entirely. Similarly, there is no obligation that e-mail addresses exist indefinitely. In fact, an entire DNS name could be released or transferred to another party, thus invalidating all references that use that name.
Users of the Internet have absolutely no guarantees that references to content will remain available from one moment to the next.
The overwhelming preponderance of failures of users to get content for which they have a correctly entered name is caused not by DNS outages but rather by the simple fact that content is volatile, it moves, it mutates, it vanishes.
The balance of failures is caused by raw connectivity failures in the Internet or by congestion. It has been estimated by some commentors that at any given instant perhaps 3% of all Internet locations are unreachable from any given point. And congestion, particularly at points where ISP's connect to one another, causes data transfers to freeze of become so slow as to be unusable.
So, we can see that making DNS TLDs more "stable" won't improve the user's experience.
And none of those who cry "instability" seem to care much about that.
What the loudest of the "stability" advocates seem to care about is that their e-stores to sell products over the Internet will always open so that they can make a sale whenever a user wishes to part with his or her money.
So it seems that to a large extent the beneficiaries of this "stability" are not network users but rather those who have something to sell over the net.
There are, of course, others that have an interest in making sure that there content is available whenever a user requests it - emergency services comes to mind. Users do benefit from this.
"Stability" is not free - there is a cost involved in running an armored computer facility with redundant everything. It seems to me that the burden of those costs ought to be born by those who obtain direct benefit.
So this is how I answer those who demand "stability": If you are a commercial interest then you foot the bill to make your TLD as "stable" as you like. If you are publishing material that benefits the public health or safety (and not doing so in a way that is essentially an advertising vehicle) then it is fair to expect the costs of "stability" to be born by the public.
In practical terms this means the following: TLD operators ought to be required to make prominent and public disclosures containing sufficient information for a potential domain name registrant to evaluate the degree of "stability" that the TLD operator is offering. A TLD operator could promote its facilities, its operations, or even its contractual relationship with other TLD operators to continue service even in the face of a business failure, etc.
TLD operators that run high-availability systems will, I expect, charge higher prices. A registrant who cares about "stability" ought to make sure that the contract between the registrant and the TLD operator gives the registrant the contractual right to obtain the promised level of performance.
ICANN, despite its denials, has enacted de facto worldwide laws that have as their practical effect the vast expansion of trade and service mark rights.
ICANN's rules supersede those of nations.
That is wrong.
ICANN should not be making law, much less should it be making supranational law.
(This lawmaking is especially egregious as it occurs without the participation of those who are most frequently the victims who lose rights and property as result.)
ICANN's UDRP is a case in point - most nations have laws that govern trade and service marks. And there are international treaties on the subject. ICANN's UDRP is an unnecessary addition to that body of law, particularly since it was created by a body, ICANN, that has no status as a legislature.
If a trademark owner believes that some domain name infringes on his/her rights in the trademark, there is an adequate body of law to determine if infringement has, in fact, occurred and, if it has, to accord relief.
Because it is duplicative of existing laws - laws that have been enacted by established legislatures - ICANN's UDRP should be eliminated entirely and absolutely.
Sure, this would cause trademark owners to sometimes have to travel to where an alleged infringer may be. And that is a burden given the worldwide visibility of domain names. However, our legal systems do evolve - the fact of evolution is built into their most basic foundations - and we ought to trust the slow, but sure, evolutionary processes of law to find a balanced result than to leap to an arbitrary law, such as the UDRP, created by a mere "private corporation" from processes that allow only one side, the trademark owners, to participate.
The present UDRP has many flaws and needs revision.
Before getting into the revisions, I would like to mention that I do not believe that ICANN ought to impose a UDRP at all - I believe that existing law is adequate protection for those who claim to have a protectable interest in a name or trademark or service mark.
Assuming, however that the UDRP is retained, here are some ways it ought to be revised:
The UDRP ought to be made available to protect the rights of all people or entities that have a protectable interest in a name. It is not right that the current UDRP is available as a remedy only to those who have trade or service marks.
The UDRP ought to be amended to make it clear that it is inapplicable unless the accused domain name is actually used in a way that violates the laws of the jurisdiction in which the the accused name operates. Thus, a domain name that is simply held in a portfolio would not be subject to action under a revised UDRP. And equally, holding a domain name out for sale would not be subject to action under a revised UDRP.
The UDRP ought to be amended to recognize that there are many rights in a name that exist beyond trademark rights. These includes rights of parody, rights of criticism, rights of free speech, rights to create names for non-commercial use, etc.
The UDRP ought to be amended so that its maximum initial remedy is to enjoin the actual use that violates the laws of the jurisdiction in which the the accused name operates. Only if the use then continues ought the UDRP grant the remedy of transfer or cancellation of the domain name.
The UDRP ought to be amended so that the intention of the owner of the accused domain name is not relevant to the outcome. The UDRP ought to be designed to remedy actual harm caused to the complainant, not to punish a domain name holder for bad attitude.
The UDRP ought to be revised so that there is no built in incentive for arbitrators to favor the complainant.
The UDRP ought to be revised to allow the defendant/respondent more realistic and fair time periods in which to respond to an complaint and to react to a judgment.
My position has always been that there ought to be no impediment to the creation of new TLDs - but with one proviso: There is a limit out there somewhere on the number of TLDs, probably somewhere between one and several million, where DNS loses its value as a hierarchical system.
So I'd let anybody operate any TLD for any purpose they chose - the creation and imposition of charters is up to the TLD operator. (And an operator could change the charter if the contract with his/her customers doesn't prohibit it.)
I would not impose any operational requirements in the name of "stability" - I figure that is a contractual matter between the TLD operator and his/her customers. If a registrant wants stability and escrowed databases, then he/she can go to a TLD that offers that kind of service (presumably for a price.)
I'd not place any obligation on TLD operators to honor anything like a UDRP. I figure that if somebody registers a domain name and actually uses it to infringe on a trademark that there's an adequate legal foundation for the injured party to obtain a remedy - there's no need for us to need to create new and ad hoc legal system.
My concern about the one-to-several million number of TLDs needs to be handled by the imposition of some sort of barriers to prevent unproductive collecting. I am somewhat afraid of monetary barriers because that allows the rich to buy in. I personally like lottery systems - I kinda like some sort of plan that says:
We will introduce 1,000[*] new TLD's slots each year. Every natural person is entitled to purchase one "ticket" (perhaps for some nominal price to recover *reasonable* costs[**].) The 1000 winners will be selected in sequence - and each winner gets to select the character string they want to use for his/her TLD - there would be absolutely no examination of the name in terms of trademark or obscenity - that kind of thing ought to be up to the external legal system. (In case of duplicate character strings, priority goes to the winner that came first in that year's drawing sequence.) I'd allow the winners to sell their tickets or prizes at any time (including a winning ticket that has not yet selected the character string) for any price they can get.
[*] I picked the number 1000 because it's probably enough to cover the needs of the first year or two while the bugs are worked out of the system. After that, it could readily go to 10,000/year - that gives us 100 years before we reach the million TLD mark.
[**] I'm kind of fond of the notion that the costs should be underwritten by the current suite of TLD's - they got a big free ride, especially the NSI ones, and its time for them to return the favor.
I might be moved to consider some sort of keep-alive mechanism - for example, the TLD winner (or successor) has to say "we're still here" once a year and keep at least a reasonable number of name servers operational - a lapse of a few years would be reason to reclaim the TLD name and slot.
I figure that all that ICANN ought to be doing is selling slots in a DNS root zone file. To the greatest extent reasonable, ICANN ought to keep its nose out of what people do with those slots - any disputes can, and ought, to be resolved by the existing legal systems, even if that means that some trademark owner has to hop a plane and file a lawsuit in Estonia or Niue or somewhere. And - here's a US centric aspect - I'd respond to orders to do something to a slot only if it got past all the hurdles needed for foreign judgments to be enforced in California (or wherever.)
There is an active verb that goes with the term "Director" - and that is to "direct". It is my intention to not sit passively by and let "staff" run amok, as they are now doing, or to let Internet policy happen by silent acquiescence.
I'm as fallible as everyone else. So I'll do my best to be open and transparent in all my ICANN related activities so that you can catch my mistakes and give me guidance.
I'm generally available by e-mail and I'll try to maintain a web page about what I'm doing and thinking.
During board meetings I intend to take notes of my actions and have them published into the minutes. I'll try to include a statement of what information I hear, where it comes from, how credible I consider it, what the issues are, what the tradeoffs are, my evaluation, my vote, etc, etc. I anticipate that the corporate secretary will resist incorporating this in the meeting minutes to which I will respond as appropriate.