"It's Time for ICANN to Go"

By Damien Cave

By Salon Staff
Published July 25, 2002 7:27PM (EDT)

[Read the story]

Since John Gilmore chooses to use my name in his imaginary history of how we got to where we are, I thought it would be appropriate to lay out the real facts. Since you published the original interview, perhaps you would think it appropriate to publish this response.

Perhaps Gilmore once had (or maybe still has) something to offer of value, but that does not include either political science or history. In the World According to Gilmore, Vint Cerf is a traitor, Jon Postel was a coward, and ICANN is just another manifestation of the military-industrial complex at work. Karl Auerbach is the modern day Martha Mitchell (I agree there is some resemblance), and Joe Sims has single-handedly manipulated this process to earn enormous fees for him and his law firm. It makes for a great story, and to people like Gilmore, and publications like Salon, I suppose it is just an inconvenience that it is almost total fantasy.

Let's get rid of the greedy lawyer canard up front. This point simply reveals Gilmore's lack of understanding of the law business. I was fully occupied before I was retained by Jon Postel, and would also be so today if I was not representing ICANN. The notion that I or Jones Day, which provided more than $1 million of pro bono time to Jon Postel and has since the formation of ICANN provided its services at cost, is doing this for money is a joke. For one thing, there is not enough money in the world to put up with the unadulterated BS of Gilmore and his more personally offensive colleagues. The opportunity to avoid the daily garbage spewed out by those, like Gilmore, that either don't know better or don't care what the real facts are, is highly appealing to me. As I have already indicated, as soon as this reform process has reached a point where I feel that I can retreat from this war zone, I plan to retire from this effort.

As for the rest of Gilmore's version of history, here are the relevant facts:

1. Gilmore says he was involved in the process of creating the original ICANN bylaws, but that "they" ignored EFF's suggested wording changes to fix what it saw as a lack of accountability. I have a very distinct recollection of those proposed changes, and of at least one conversation with Gilmore on them; the particular provision that sticks out in my mind from the suggestions was his proposal that the ICANN bylaws incorporate the United Nations Declaration of Universal Human Rights. Gilmore is certainly correct that I was not enthusiastic about this suggestion, but perhaps others will not be surprised that neither was anyone else involved in the process, including Jon Postel. In fact, I believe Jon made that point directly to Gilmore, who was then and remains today on the extreme fringe of rational thinking on ICANN issues. The general reaction to his suggestions was that they were either unworkable, or, as illustrated by the U.N. point, just plain silly.

2. Gilmore's understanding of the Auerbach litigation is either incomplete or disingenuous. The issue in the Auerbach litigation is whether each individual director of a nonprofit corporation has the unilateral right to make decisions about the distribution of information from the corporation, or whether that responsibility rests with the Board as a whole. Karl Auerbach has always treated his seat on the Board as an individual duchy, his to preside over without regard to the views of his fellow directors, and he has refused to even discuss this issue with the rest of the Board. Contrary to Gilmore's assertions, this litigation has nothing to do with access to information; Karl and all other directors have access to any information anytime they want, and other directors have taken advantage of this right on several occasions. What an individual director cannot do is to impose his individual views on the entire organization, since that would mean that there was not one Board but rather several independent Boards, each made up of a single director. Auerbach understands this, which is why he has refused numerous offers to actually review the materials in question, and why he has yet to take his case to the Board itself, as called for by ICANN policy. Gilmore may or may not understand it (from his statements it is not clear), but if he does not, his description is simply ignorant rather than disingenuous.

3. I won't bother to respond to his SAIC story, since it is irrelevant to the issues facing ICANN today. I would simply note that both SAIC and Gilmore appear to have profited from the same economic environment.

4. Gilmore seems to be saying that the ICANN Board is too big and too divided to be functional. In his view, somewhat inconsistently, the Board is loaded with "yes men, who'll support management whether they're right or wrong." Here again, the real facts are apparently just an inconvenience for Gilmore, to be discarded if they interfere with his conspiracy theory. In fact, the Board is not divided at all; the vast majority of its votes result in a larger than two-thirds majority. It is true that Karl is frequently in the minority, but that minority is often a minority of one, or less frequently two or three. I find the math interesting; the fact that the vast majority of the Board (including those others elected by the general public) does not agree with Auerbach to Gilmore means that the Board is dysfunctional. Others might conclude, on the same facts, that it is Auerbach that is dysfunctional. It is interesting, for example, to look at what happened with the latest Board decision on reform -- to adopt the Blueprint for Reform proposed by the Evolution and Reform Committee in Bucharest. Karl did not even deign to participate in the Bucharest meeting, which was probably one of, if not the, most important meetings in ICANN's history, since it determined how ICANN would be reformed and restructured for the future. Karl was AWOL, choosing not to even attempt to participate by the conference phone link that ICANN had established for his sole use. But the rest of the Board was there -- every single one of them -- and they unanimously adopted the Blueprint as the roadmap to ongoing reform. This unanimous vote included ALL of the directors chosen by the Protocol Supporting Organization, ALL the directors chosen by the Address Supporting Organization, ALL the directors chosen by the Domain Name Supporting Organization, and perhaps most importantly for this point, ALL the directors elected by the general public -- except for Karl, who chose to abdicate his fiduciary obligation and simply absent himself from the proceedings. Now, to Gilmore this unanimity no doubt merely reflects the fact that all those people, selected from all those different sources, are simply "yes men," merely doing what they are told by management. This gives an awful lot of credit to management, and impugns the ability and integrity of a large number of people, including Vint Cerf and others, whose contributions and devotion to the Internet are at least as great as those of John Gilmore.

5. Finally, in response to a question on the international situation, Gilmore says he is no expert, and then proceeds to prove it. Gilmore is one of a group of American critics who assume that American values and reactions are and should be determinative in decisions about ICANN, and who thus dismiss as inconsequential the contrary views of those around the world. To Gilmore, there apparently are no other relevant governments other than the U.S. government, and he certainly demonstrates no understanding at all of the complicated geopolitical issues swirling around ICANN. This head-in-the-sand attitude is unfortunately quite common among ICANN's American critics -- who not coincidentally are far louder than the non-American critics, which may mean there are fewer of the latter, or may mean only that the Americans are particularly boorish in the enunciation of their views. The plain facts are that the U.S. government cannot act unilaterally in this area; the Internet, after all, is a global resource, not the property of the United States. Just as we have seen in the U.S. government approach to the .us registry, other national governments have strong views about these issues, and their views are not uniformly consistent with those of John Gilmore or Karl Auerbach. To those folks, this just means that those others don't understand the true values of the Internet; to those others, the views of the Gilmores of the world simply demonstrate how incredibly parochial some people can be. ICANN must accommodate all those views, ranging from the Gilmores to those of governments around the world, and try at the same time to produce a workable organization that is not as cumbersome and unresponsive as the typical multinational governmental bureaucracy. Whether Gilmore understands it or not, creating global consensus is hard work, and requires compromise, not extremism.

The most outrageous part of Gilmore's interview was his description of Jon Postel as "spineless." To be candid, Gilmore doesn't have a clue about what he is talking about, and his views are thus mostly worthless. I hope that this effort to provide some balance will allow interested readers to make their own judgments about what is going on here.

-- Joseph Sims, chief counsel, ICANN

John Gilmore responds:

I think Joe Sims' letter testifies to his character much more clearly than I could.

-- John Gilmore

Salon Staff

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