FC: ICANN snatches Australia's .au domain in power grab, by Gordon Cook

[Declan McCullagh <declan@well.com>]

News coverage of ICANN meeting this week:

      ICANN Pressured On Public Participation
      Sep. 10, 2001 19:35 ET
      http://www.newsbytes.com/news/01/169935.html

      'Dot-Info' Opens To Public On Wednesday
      Sep. 10, 2001 17:35 ET
      http://www.newsbytes.com/news/01/169933.html

      ICANN Board Squeezes Squatters
      Sep. 10, 2001 16:45 ET
      http://www.wired.com/news/politics/0,1283,46680,00.html

      Panel: Internet suffix `.org' isn't just for non-profits
      Sep. 10, 2001 05:45 ET
      http://www0.mercurycenter.com/premium/world/docs/org09.htm

      ICANN meets to discuss its policy
      Sep. 9, 2001 16:02 ET
      http://www.taipeitimes.com/news/2001/09/09/story/0000102220

-Declan

*********

Date: Mon, 10 Sep 2001 20:46:16 -0400
From: Gordon Cook <cook@cookreport.com>
Subject: as you observe the Montevideo ICANN meeting some things to think about

The Real ICANN, by Gordon Cook and Dave Hughes
cook@cookreport.com  dave@oldcolo.com


The Australian Smoking Gun

With .com .org .net  and all the other GTLDs under its firm control, the 
Real ICANN is now snuffing out independent country code domains and putting 
them under the same contractual assurances that GTLDs are.

This has just begun with the Australian country code domain that has been 
taken away from Robert Elz, an Australian university professor who had done 
the task for free for more than 10 years.  It has been taken without cause, 
without hearing, and without due process.

ICANN has established  a ccTLD Sponsorship Agreement. According to Michael 
Froomkin's analysis <see the url below> the door is wide open for any group 
of people in any nation to form an organization to run that country's 
country code domain name.  Such a group can then seek the government's 
blessing and, by telling ICANN, it will subscribe to the agreement, it has 
likely reason to believe that ICANN will certify it if the government 
agrees.  With this pledge of fealty from the newly formed ICANN country 
code compliant entity, ICANN can then take the domain name away from the 
current administrator and give it to the new entity that wants to run it on 
behalf of ICANN.  The government then is presented with the opportunity to 
agree to the ICANN action, which the Australian government has done.  The 
result is collusion between the ICANN and the government that permits ICANN 
to effectively internationalize a formal national resource and by saying 
that it is just following ICANN's request, execute an end run around any 
existing due process constraints.

With the .us country code domain the Real ICANN has accomplished that same 
goal through Karen Rose who has been positioned in NTIA by ICANN's 
corporate founders to give US government blessing to do what the extra 
legal forces behind ICANN want.  Karen has executed a bid for an 
administrator of the US country code domain.  You can bet the winner will 
agree to play by the ICANN rules of the ccTLD Sponsorship Agreement.  From 
every thing that we can tell by talking to numerous sources Karen 
effectively has become an unsupervised agent operating largely on behalf of 
the entities she is supposed to regulate.  Her 'charges' tell her what they 
want and generally they get it.  The agreement of the US government to the 
actions of ICANN has been reality for three full years.

Bottom line is that in this instance ICANN, in a series of lawless actions, 
is about gain the ability to dictate the terms under which both American 
citizens and citizens of other countries can hang out a cyberspace address 
shingle for a web site.

The REAL ICANN versus the Public ICANN

The public ICANN is being sold as a democratic organization, founded on the 
basis of California non profit law, respectful of it broad consensus of 
support by Internet users.  This public ICANN is a deception that is 
presented to distract attention from the real ICANN.

The Real ICANN is acting on its own authority without the backing of 
national law or international treat to take control of the Internet's 
naming system and thereby gain a strangle hold over the ability of 
individual people and small businesses to work, live and express themselves 
in cyberspace.   Having no legal authority  to take away the property 
rights inherent in the Australian country code domain it has nevertheless 
just done so.

  How could this happen?  It has happened as the result of three years of 
gradual accretion of power by its staff -- Stuart Lynn as President, Vint 
Cerf Chairman of the Board, Andrew Mclaughlin as chief policy officer and 
by counsel Joe Sims and Louis Touton and ex president Michael Roberts as on 
going consultant.  ICANN's Board is there as window dressing and is 
informed by staff after-the-fact of decisions that are expected to be 
rubber stamped.

Let us step back and look at the big picture.  That big picture shows that 
the Real ICANN is WTO done on Internet time. The innovation behind the Real 
ICANN is that it is an international, supra governmental organization that 
doesn't have to be based on international treaty like the Hague Convention 
or WTO --  which treaties take too much time to pass.

The real ICANN fools outsiders by clothing itself in a " legal" structure 
to which it gives only lip service, a board of directors which it ignores, 
and by laws that it ignores or changes when it pleases.

It gives lip service to expected 'democratic' requirements like acting on 
alleged consensus which means nothing more that what ICANN staff chooses to 
say it does at any time and can be and is changed on a whim.

Indeed it is a totally new kind of organization ostensibly wearing legal 
clothing but in fact free to ignore or change its dress as convenience 
dictates.  It is succeeding because its area is arcane and highly complex 
and specialized.  Media does not have enough time, understanding and 
resources to verify whether ICANN is telling the truth or lying.  Since we 
have never before had an organization that is founded on and operates on 
blatant deception, media, not knowing any better tends to believe ICANN.

The real ICANN is about centralized control of the Internet on behalf of a 
handful of global corporations that want uniform global control of their 
intellectual property and corporations that also want uniform national 
conditions for global e-commerce.  Governments that fear the consequences 
of the Internet's ability to ignore global boundaries will be willing to 
aid and abet ICANN's intentions.

The real ICANN is carrying out its mission via control of the DNS - the 
ability of people to have an address that allows them to do business in 
cyberspace.  ICANN will squeeze out independent voices by raising the cost 
of  domain name registration and  turning names over to private contractors 
with the obligation to fund ICANN at a rate of 15% inflation per year.

 From Control of Namespace to Control of Content

And control of websites and expression of diverse opinion is what the game 
is all about. Witness for example the recent statement by  WIPO that 
governments ought to force non WIPO compliant websites to put warnings to 
that effect up on their home page.

The homogenization of websites into messages safe for governments and 
multinational corporations is the end goal because we predict that in 
ICANN's eyes control of content will soon become as important as control of 
the alleged single root for the stability of the Internet. We cannot of 
course prove that we are correct in the prediction, but observation of the 
continued concentration of media into fewer and fewer hands and into the 
hands of corporate conglomerates benefiting from the emergence of supra 
national ICANN like authorities makes it seem eminently fair to raise this 
question.  The Internet revolution gives everyone a printing press.  This 
reality makes life more complicated for those who want only to sell the 
alleged benefits of globalism.  By the time that we can be proven right or 
wrong about ICANN and content, it will be too late. The battle about 
address space is a battle about control. Control is worth having because it 
gives the possessor a lever to clamp down on content.  To those who say 
well you can still hang out a web shingle as gcook1875@aol.com or 
dhughes1172@aol.com,  we reply under what conditions and at what 
expense?  AOL is not a staunch defender of free speech.

ICANN is on the verge of getting enough money for itself to be financially 
independent of any national base.  When Karen Rose either gives her ICANN 
sponsors the ROOT  or ICANN takes control of the root on its own, ICANN can 
be free to move off shore and will no longer be under the reach of US 
law.  It is imperative to act and to create and sell to congress a 
structure to replace it with.  The move has almost succeeded.  Given 
continued complacency it will succeed.  It is time for people more powerful 
than we and with access to more resources than we to act in California and 
federal courts and in the halls of congress.

The real ICANN is the test mechanism for global economic interests being 
able to avoid national legislative processes entirely as well as accepted 
processes of treaty agreements.

Appendix:  The Australian ccTLD Take over

http://www.icannwatch.org/essays/dotau.htm

How ICANN Policy Is Made (II)

A. Michael Froomkin
ICANNWatch.org

In a watershed moment in Internet history, ICANN declared this week that 
the ICANN staff can re-assign the .au ccTLD at will, without a finding of 
misconduct, without a public comment process, and despite the opposition of 
the incumbent ccTLD manager. In so doing, ICANN in effect simultaneously 
declared that it can redelegate a functioning ccTLD over the opposition of 
the current delegate; that controversial dictates of the so-called ICANN 
Government Advisory Committee (GAC) will be treated as ICANN policy even if 
they have never been voted on by any other part of the ICANN machinery; 
that a major change on redelegation policies will be made in secret, 
without any public discussion; that a major decision on the governance of a 
functioning TLD will be taken unilaterally and secretly by the ICANN staff, 
without either a publicly documented comment period or a vote of the DNSO 
or the ICANN Board. that it's ICANN/GAC policy to support the creation of 
national mini-ICANNs as an end-run around ordinary government procedures.

All this from one report recommending the redelegation of .au? Yes. Even if 
you like this outcome, and there are reasons why you might or might not, 
there's quite a lot to be concerned about how ICANN got there and what this 
tells us about where ICANN is going.

[Snip]

here is the conclusion by Froomkin:

Why This Is Serious

ICANN now takes the view that if a government wants to take a ccTLD, or 
wants it delegated to its mini-ICANN, "IANA" can do that, without a finding 
of fault on the behalf of the existing ccTLD operator.

There are three grounds for concern in this story. The first, as I've 
suggested in this narrative, is that ICANN persists with the fiction of 
IANA to the detriment of open processes. This is dangerous. The second, 
also set out above, is that ICANN creates new policies on the fly -- this 
time with the added bonus of turning GAC's advisory role into one of pure 
policymaking, unmediated by any other ICANN body. This too is dangerous. 
The third is that ICANN's new policy essentially puts governments in 
control of ccTLDs. That's complicated, but subtly dangerous too.

Ultimately, I think governments can, and should be, allowed to exert 
control over ccTLDs designed to serve their nations. RFC 1591 requires that 
the ccTLD operator have a local presence, and that means that governments 
will always have the power to regulate (or even jail) the ccTLD operator. 
But in democratic governments, regulatory decisions have to be made 
according to established and legitimate processes. Taking a functioning 
ccTLD from someone against their will is not something a democratic 
government would necessarily find it easy to do. Similarly, all sorts of 
ccTLD regulations -- the UDRP comes to mind -- may only be possible if 
enacted through ICANN, or a series of mini-ICANNs.

ICANN was already a means by which the US government did an end-run around 
ordinary government procedures. Now ICANN's taking the show on the road.

Useful links
Story in The Australian
http://it.mycareer.com.au/breaking/2001/09/03/FFXQIBM55RC.html
slashdot discussion
Sydney Morning Herald story

Later on September 5

It seems that the auDA will be the first ccTLD to agree to ICANN's new
ccTLD Sponsorship Agreement. There is, of course, no connection between
this item and ICANN's approval of the auDA's application to take over the
..au ccTLD in violation of ICANN's own rules.

http://www.icannwatch.org/article.php?sid=339&mode=nested&order=0
  --

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