* Posts by KA0293

5 posts • joined 13 Feb 2015

The curious tale of ICANN, Verisign, claims of subterfuge, and the $135m .Web dot-word

KA0293

.web has been active for decades - but not under ICANN

I still have an active, paid contract for cavebear.web with the original .web (by IOD) here in California. It has been active for roughly as long as ICANN has been in existence.

Yeah, it hasn't been in the NTIA/ICANN/Verisign root system, but ICANN is not some sort of god that has a right, legal or otherwise, to supplant uses that occurs outside of its purview or without its approval.

That suggests, perhaps, that use of the term and domain name ".web" by any other provider here in the State of California could be a form of unfair business practice and thus prohibited.

Would anyone want to pay $$ for a top level domain over which there would be a cloud over its use in the State of California?

Republicans threaten to derail internet transition

KA0293

On Corporate Accountability - and then there is ICANN

Of all people I probably have the longest and deepest experience with ICANN's intentional efforts to hide its activities - remember that I, as a sitting member of ICANN's Board of Directors, was blocked when I tried to exercise my clear statutory right to inspect the financial ledgers of the corporation. I had to go to court to get an order - which was granted when the judge pretty much laughed ICANN's absurd arguments out of court.

In any case, I do have to agree with ICANN's Board and, shudder, with Jones Day, on the matter of Board Responsibility. The JDRP memo was badly done - I would have sent the associate who wrote it back to a remedial class in corporate law. What was missed is that the reason that California law vests the operations of the corporation in the Board is to have a place onto which the tail of responsibility can be pinned onto the corporate donkey. It is not practical to assign fiduciary responsibility onto a membership or people that compose that membership - that is why that responsibility is placed onto the shoulders of the members of the Board of Directors - so that there is somebody who's actions can be measured in a lawsuit.

As the JDRP memo points out the corporate organic documents - the Articles of Incorporation and the By-Laws can create procedures that require the board to go to third parties to obtain information and opinions that it can put into the obligatory process of each director making an informed and independent decision (which also includes a decision not to act.)

The "single member" approach was downright stupid - it essentially created an uber-board composed of one member. That clearly would be a violation of the whole concept of a corporation as conceived by the law of California and pretty much every other place on the planet. That would have been essentially a sole proprietorship rather than a corporation.

California law provides for a perfectly good method of having empowered members - but ICANN has been shaking in its boots for decades at the thought of a derivative action - essentially a legal procedure in which the corporation sues itself and pays the bills on both sides.

The JDRP memo several times says "if you want to complain go to the California Secretary of State". (By-the-way, I have spoken with the Calif. Sect'y of State about ICANN but we went no further than discussions.) However, the Secretary of State is an ultimate remedy, not an initial or primary remedy when complaints arise. The law contemplates derivative legal actions as something before the dragging-in state officials. Derivative actions are a healthy and well tested method, but ICANN has thrown the whole California system of membership organizations into the rubbish heap simply to evade being questioned via a derivative action.

ICANN has become a captured regulatory body, a money pump for certain special interests who benefit from ICANN's existence: DNS registries (who get lucrative, fiat, never audited registry fees - the epitome being Verisign that derives over a $billion/year from the protection of ICANN's shadow), ICANN's law firm (which created ICANN as a captive client back in 1998), the trademark protection industry (which receives private-law protection via ICANN far above that which it has obtained from any national legislature.) The community of internet users, the public, on the other hand, has had very little benefit from ICANN - for example ICANN's arbitrary limit of ten year domain name registrations all but guarantees that much of the content of today's world wide web will fall into the bit bucket as people die or otherwise fail to renew domain names. Because of ICANN we will be leaving only a fragmented digital history to our descendants.)

It may be fortunate that technology is moving on and creating overlay naming systems that hide DNS and are turning DNS into an internal, somewhat hidden, cog of the internet. There may be domain names underneath Facebook access or Twitter handles or Apple Cloud contact phonebooks, but for most users that domain name level has become invisible and irrelevant. As such, much of the energy of the fights over domain names as trademarks and brands may be defusing and with that defusion the role of ICANN may be beginning to fade.

But that does not mean that ICANN is not important - there are already efforts to bring governance to areas such as "internet of things". And people are looking at ICANN as a possible model. ICANN is probably better conceived as a counter-model for the future.

How much has ICANN spent on lobbying US govt this year? $2.5m

KA0293

Does anybody remember when members of ICANN's board of directors looked at its financial records?

Remember when I, as a sitting member of ICANN's board of directors requested to look at ICANN's general ledgers? Remember that despite unambiguously clear law that gives directors the power to make such examinations that ICANN fought tooth and nail for 18 months until I obtained a writ of mandate from a court to compel them to open the books?

I wonder whether any directors since that date have bothered to take a glance at ICANN's finances, or have they just accepted the summaries presented to them by ICANN's ever more powerful management?

By-the-way, after I took my look some of ICANN's suppliers, including its largest creditor, stopped presenting detailed invoices and presented only summaries in an attempt (seemingly a successful attempt) to prevent even one who examines the ledgers from really understanding where the money is going.

ICANN running the global internet? It's gonna be OK, it's gonna be OK, US Congress told

KA0293

ICANN has make itself accountable to no one.

I was the first (and only) person ever to be elected by the public to ICANN's Board of Directors.

Because I tried to exercise even the most basic of oversight - in particular to examine the financial ledgers of ICANN - ICANN erased even the concept of public elections.

The question of accountability always involves the question of "accountable to whom".

The standard answer for corporate forms, such as ICANN, is "first the board of directors and then to those who chose who will be members of that board."

ICANN's board has historically acted as a toothless body of worthies who do not control ICANN but, instead, hand all real authority to a President/CEO, who like many CEOs is more concerned with empire building and poo-bahing around than in actually focusing on the quite small job that ICANN is supposed to do. (More on that in a moment.)

ICANN has created a system of selecting board members that is self perpetuating and allows only conformists to be considered. The public, for whose benefit ICANN obtains its legal existence, has essentially no role in that process.

Thus the question of "to whom is ICANN accountable" may be best answered with the single word: "nobody".

As for ICANN's proper role: ICANN's job is to assure that the top tier of the internet domain name system quickly and accurately turns DNS name query packets into DNS response packets without prejudice against any query or person making a query. That's a pretty tiny role. It is certainly a role that can be done with fewer than ICANN's hundreds of employees and world spanning array of offices and an organizational structure that would make a Byzantine emperor blush.

ICANN chose California as its home. Nobody forced ICANN to make that choice. And California, like many other states and countries has very rational and well tested method of holding public-benefit corporations such as ICANN accountable: ICANN can recognize internet users as members. Under the law, if there were such members, those members would have many rights to take ICANN to the wood shed should they feel it was running off the rails.

But ICANN has edged around the edges of the law. California automatically creates a membership structure if there are elections for board seats. I competed for my board seat in what looked and smelled exactly like an election. But in order to evade the law, ICANN called it a "selection".

ICANN has not really improved since then. Rather it is simply become more expert at building walls between it and those affected by its decisions and at ramifying its organization so that it is nearly impossible for anyone except the deepest of insiders to comprehend what ICANN is doing or has done.

By-the-way, in case things this is a tempest in a teapot - ICANN's cumulative footprint on internet users amounts to a tax that is somewhere between $1,000,000,000 to $2,000,000,000 per yer that is levied on a non-consenting community of internet users.

Back off – it is ILLEGAL to make us accountable, claim ICANN lawyers

KA0293

In answer to a few questions raised on this thread?

1. Yes, ICANN is still a California public-benefit/non-profit corporation that also has US Federal 501(c)(3) tax exempt status.

2. "Who appoints the board?" - ICANN has a process that makes Byzantine look simple. The basic answer is that unless you are a "stakeholder" (generally meaning that you have a financial interest in ICANN's decisions) you don't get to play, only to watch. There is a rump public element, but it is structured very much like the hierarchy of soviets (committees) of the old USSR - and equally accountable to the public.

ICANN used to have public elections, but ICANN did not like who won. So they erased that system.

3. Regarding the main point of the article - Under California law the board of directors of a corporation holds the ultimate power and authority. They can delegate or impose procedures on their decision making, but they retain the power to change and override - they can't point to someone else and shirk their responsibilities.

ICANN chose in its early years to avoid - some say evade - being a "membership" kind of public benefit corporation. That status would have imposed many obligations onto ICANN that ICANN did not want - you can see ICANN's own analysis here: https://archive.icann.org/en/meetings/santiago/membership-analysis.htm

4. Some rude stones were thrown on this thread against a former ICANN chairman. Those stones are not warranted.

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