Unfortunately, the bylaws and articles were hardly changed at all in response to the recommended changes, and those changes that were adopted have been largely ignored in practice.

Many of the fears that both the Boston Working Group, and the Open Root Server Confederation expressed have indeed come to pass. Today, despite ICANN’s telling Congress that the Santiago Board Meeting would be open, other board meetings remain closed.

ICANN does not provide nearly enough prior notice or comment periods before adopting by-laws changes or other substantive changes.

The ICANN board has failed to establish "on the record" voting. 

ICANN picks and chooses between constituencies and its executives make defamatory statements about those who attempt to participate in the process.  (This writer is among those who have been subjected to such abuse.)

ICANN has failed to replace the interim board with an elected board.  Even worse, ICANN’s board now proposes to continue the unelected interim board until September of 2000.  In fact, it posted its proposal to do so only few days prior to the Santiago meeting.

Perhaps most damning, however, was the utter failure of the ICANN board to address the creation of an individual constituency, or to mandate that individuals be allowed to participate in other, already formed and provisionally approved constituencies.  Neither individuals, nor non-commercial entities have any voice whatsoever in ICANN.  Both the BWG and ORSC bylaws clearly mandated that ICANN fully admit individuals and non-commercial entities.

But it goes further, the ASO (Address Supporting Organization) and PSO (Protocol Supporting Organization) exclude any but a few select entities, entities which have not public accountability, are largely neither transparent nor open. Given that ICANN has repeatedly mentioned the possibility of charging for address allocations, a closed ASO could become even more non-competitive and dangerous than the irresponsibility shown by ICANN regarding the DNSO (Domain Name Supporting Organization)

The new ICANN Board ignored the concerns of BWG and the ORSC. Commerce wrote the following email to the ICANN regarding the desire that ICANN work with both groups to achieve a consensus document:

Unfortunately, specific points made by the BWG went ignored by ICANN. These points include the following:

When it became apparent that ICANN would not seriously entertain making any of the changes recommended by BWG and ORSC, Commerce decided to give ICANN the go-ahead, and issued an MoU (Memorandum of Understanding) between them to provide for continuing oversight. Unfortunately, there was seemingly no substantive oversight being performed, and both groups became very discouraged. While Commerce was telling BWG and ORSC that it was not yet ready to "turn over the reins" to ICANN, another hand attempted to transfer authority through a single source offering through NIST that was added to the docket during the holiday season. Curiously, this was authority over the IANA functions that Mike Roberts had already announced were under ICANN’s control in November of 1998 at the first ICANN meeting in Boston.

Formal complaints regarding this process, and the lack of Commerce Department supervision as described in its MoU went largely unanswered. Here is one example:

Individual and non-profit domain name holders are impacted in a significant and negative manner.

Both have been placed at significant risk of expropriation of their existing domain names, without compensation and without benefit of any form of legal hearing or due process. And both have been placed in a position of being second-class citizens when attempting to obtain new domain names.

Neither yet has any position with any meaningful voice within ICANN's structure: ICANN has explicitly rejected the participation of non-commercial interests and has taken multiple steps to prevent individuals from having any meaningful voice at any level of ICANN.

DNRC feels that ICANN, as a body of technical administration, has no business mandating domain name dispute policies in any way, especially given the lack of representation for individuals, non-commercial entities, and others. A petition formulated prior to the Berlin ICANN meeting and signed by 85 individuals (many having been deeply involved with Internet policies in the mid 80s) was presented to ICANN asking them to postpone consideration of the WIPO proposals until non-commercial entities and individuals were more represented. This petition was ignored.

Although ICANN’s specific dispute resolution policies have not yet been chosen, DNRC has reviewed the latest draft that has been circulated and offers the following specific comments:

ICANN’s dispute resolution policy could stifle political speech, parody, and criticism. If a trademark or service mark is used as part of the domain name, or the domain name is thought in any way to be similar to a trademark or service mark, the ICANN policy may call this "bad faith" and subject the domain name holder to cancellation and/or transfer the name to the challenger.

This is significant when you consider that critics, political pundits, religious groups and others with significant non-commercial messages are seeking the very same audience as corresponding trademark, service mark, or other intellectual property holders. The only way to reach this audience is often to draw the reader’s attention via a catchy title, slogan, or in the case of the Internet, through the domain name. While in publishing, one can use a title such as "Microsoft : Why I Don’t Like Their Software," the corresponding method on the Internet would be something like "Ihatemicrosoft.com." Under the ICANN dispute policy, if any commercial use whatsoever is found, then the domain name could be cancelled or transferred, and the arbitration panel’s fees may be charged to the domain name holder. Essentially, this would be a penalty for otherwise protected speech.

While the ICANN policy is said to be predicated on commercial messages, it is important to note that in the case of Jews for Jesus v. Brodsky ⁽³⁾the court found that a mere hyperlink to an organization that sold religious tracts created commercial use, and stripped Steven Brodsky of his domain name. The DNRC is concerned that such twisting of the spirit of the Lanham Act and intellectual property law could be extended to stifle other religious, political, and non-commercial commentary. This would indeed crush the very robust means of communication that has made the Internet so desirable to large corporations.

ICANN's "constituency model" is a model of gerrymandering overwhelmingly in favor of commercial interests. In addition, ICANN has allowed the DNSO to be operated with overt exclusion. Perhaps most importantly, individuals and non-commercial interests are still absent from the DNSO community. Further, virtually an entire Internet community has dropped out of the ICANN process, due to the perceived "fixed" nature of many of the proceedings.

This is most apparent in the current makeup of the DNSO. Instead of some sound representational structures as were proposed in the Paris Draft, the ICANN Board approved a constituency model where the constituencies themselves are arbitrarily defined by ICANN. This is underscored by ICANN’s refusal to put a petition by the Individual Domain Name Owners constituency on the agenda for their Santiago meeting⁽⁴⁾. This decision was made in a closed meeting with no accountability. By contrast, the Non Commercial Domain Name Holders constituency’s petition was placed on the agenda, even though it was received after the IDNO’s. This may well be due to the ISOC friendliness of many key players involved in the NCDNHC. The ISOC (Internet Society) has long been an advocate of a powerful ICANN, and more Internet governance located outside the United States.

The vast non-commercial community of the Internet (a network founded for non-commercial research and speech) is underrepresented in the make-up of the ICANN Domain Name Supporting Organization. For each vote that it has, the commercial sector has two, and the service providers have 4. We believe this does not bode well for fair use and free speech issues that will arise in the future before this body. Many of the commercial interests given preferred seats at the table of governance have historically taken positions inimical to the unfettered growth of the Internet and the new technologies and access it represents. This not only disenfranchises individuals and the non-commercial community, but it includes the budding "new wave" of authors and artists, small businesses and new technology developers who, because of their relative political and sociological immaturity have not mobilized their infant resources with the same agility possible for an ITU, a WIPO, or an ETSI

Further, although the non-commercial community is engaged in a good faith effort to self-organize, it is the most heterogeneous and far-flung group, and has taken a little longer to organize then the commercial interests (who have more resources to dedicate). Nonetheless, the Non-Commercial Domain Name Holders Constituency (the NCDNHC) is now organized and accepting applications and will have elected representatives before the Santiago meeting. The IDNO, likewise, has elected representative, the first Internet based fully functional voting system, and policy statements ratified by its membership. To date, neither have been accepted as a full constituency.

Regardless, ICANN moved forward on the domain name dispute and cybersquatting proposals, a set of substantive law and mandatory arbitration procedures , without elected representation from either the non-commercial organizations or individuals.

We would like Congress to urge the Department of Commerce and ICANN to return these cybersquatting proposals without adoption for review and assessment which includes the non-commercial, small business and individual communities

Instead of defining a basis of representation, with objective standards by which constituencies qualified for recognition, the ICANN approach was to approve 7 constituencies, 6 of which were recognized in Berlin. All 6 had a large business bias. The resulting DNSO is a captured organ, composed of former gTLD-MoU supporters, and a very few remaining members from the at-large Internet community. This DNSO is making substantive policy decisions without any input whatsoever from non commercial domain name holders or individuals, that combined group being the largest number of users of the Internet who will be directly impacted by these decisions. This is ironic Vice President Al Gore’s vision for all educational organizations in the United States to be connected to the Internet. While they may become connected, they will have no say whatsoever in the decisions that ICANN has already put into motion.

Individuals

In the drafting process that led up to the formation of the DNSO, one draft (called the "BMW Draft") did not allow for the participation of individual domain name holders. Another draft (called the "Paris Draft") did allow for the participation by individual domain name owners. This was a major source of contention in the development of the DNSO.

At the Singapore ICANN meeting, there was a compromise in which ICANN acknowledged the Paris Draft principles by writing, in the DNSO formation document: "Individual domain name holders should be able to participate

in constituencies for which they qualify." (See, http://www.icann.org/dnso-formation.html).

Unfortunately, this concept that has been written out of every single constituency proposal accepted by ICANN to date. The phrase acknowledged by ICANN at the SIngapore meeting "Individual domain name holders should be able to participate in constituencies for which they qualify" is now without meaning. Constituency drafters simply viewed that sentence as something to be routed around, and the ICANN Board did not place any pressure on constituency organizers to open their groups.

As a result of this exclusion, a new group of "Individual Domain Name

Owners" has now organizing a new proposed constituency. Unfortunately, the IDNO’s petition has been "postponed" by the ICANN board at their Santiago meeting. Again it was questioned whether individuals should have any say outside of the dilution of the General Assembly. An independent constituency for individuals is preferable, but if not allowed, ICANN should at least to have mandated that Supporting Organizations may not exclude individuals from the current. Individuals operating a for-profit commercial web site have more in common with the members of the "Business and Commercial Constituency" than they do with individuals using the Internet as a "home page." Individuals holding trademark rights on a name may have more in common with the Intellectual Property constituency than they do with another individual who is operating an informational web site.

The DNRC believes that corporate and organizational interests have excluded individuals from their constituencies not because individuals have no interest in their work, but because they fear they will be outnumbered and outvoted. The distinctions that have been drawn are artificial and should be dropped.

Non-Commercial Interests

At the creation of the DNSO in Singapore, the ICANN Board recognized seven initial constituencies, one of which was the non-commercial domain name owner constituency⁽⁵⁾ .

Following Singapore, there was some confusion and debate as to whether this constituency would be for individuals and non-profit entities or non-profit entities alone. By the time of ICANN's Berlin meeting, at which constituency recognition was to be a central issue for the DNSO, competing proposals with very different models were presented for this constituency. Because the parties could not reach agreement themselves, the ICANN Board declined to recognize any constituency in this area.

Despite the absence of any non-commercial interests on the DNSO Names Council, the ICANN Board directed work to begin the in the DNSO.

The DNRC believes that ICANN should have shown the same leadership that it did in Singapore in bringing two competing DNSO drafts together for developing a compromise in Berlin on the two non-commercial interest proposals. The decision to approve *no constituency* has left us with an incomplete DNSO charged with developing policy recommendations on some of the most contentious issues facing ICANN (dispute resolution and trademark issues).

NSI’s dispute policy is fatally flawed, and in serious need of reform. In a nutshell, the problem with the Domain Dispute Policy are as follows:

• Language that indicates it is not a policy, but more of an arbitrarily, retroactively changeable whim.

Use of "May" Instead of "Will"

NSI calls the document on which it explains its position, the "Domain Dispute Policy." However, a policy is generally a document which lays out the steps an entity will take when faced with particular situations. The new NSI "policy" states specifically that NSI *may *use this policy to handle domain disputes. This, of course, means that they also may not. Needless to say, this is hardly something most businesspeople would wish to stake their business identity upon. There are other significant problems with the domain dispute policy:

Lack of Procedure

One of the most damning criticism of Network Solutions, Inc's domain dispute policy is that it was created without normal procedures. On the Internet, when one wishes to make a dramatic or sweeping change that affects the net "across the board," one at least used to employ the RFC process (pre-ICANN, that is). RFC stands for "Request for Comment" and is the general method used to inform the Internet community what you wish to do, ask for comments and suggestions, and solicit cooperation for your plan. NSI, on both occasions that it has implemented its domain dispute policies, has released them only after they were "done deals." Although David Graves of NSI has said that comments and suggestions were taken into consideration for the formulation of the second domain name dispute policy⁽⁶⁾ , the community as a whole was given no notice of any discussions being held by NSI, or of any coordinated method for providing suggestions or comments.

NSI Is Not the Arbiter of Disputes

NSI has attempted to make it very clear that they do not desire to be brought into the middle of domain name disputes. They have gone so far as to state twice in their new policy, once up front and once in the middle, that they do not act as arbiter of disputes between "Registrants and third party complainants." However, the policy itself removes control of a domain from the original domain name holder, and puts it "on hold" while the dispute is settled by a court, or settled under the NSI policy. In these cases, the domain name holder is automatically penalized, and the challenger succeeds in depriving a domain name holder of business opportunities merely because they hold a trademark and have sent a letter alleging infringement and harm. Unlike the court system, the challenger does not have to prove infringement and harm in order for the domain name holder to have been deprived of his or her property. As has been noted, being deprived of one's domain name, even for a short period of time, can have serious business consequences.

As much as NSI wishes to claim that it is not arbitrating disputes, it is very clear that regardless of the outcome, a domain name holder must either file a lawsuit to keep the name, or hope that the trademark holder files a suit. If the trademark holder's goal is merely to prevent use of the name, it is in their best interest *not *to file suit, since the domain name holder's only recourse would then be to hire a lawyer and file their own lawsuit, prior to NSI putting the domain on hold. Given that the domain name holder only has 30 days in which to respond, the legal costs for filing will be much higher since any time you wish an attorney to work quickly, you will probably pay extra for it.

Ironically, the policy as written also acts as a deterrent to arbitration of the dispute rather than taking it to court. The policy specifically states that the domain name will not be put on hold if one of the parties files suit. It does not say that the name will not be put on hold if the parties seek arbitration. The policy also does not provide for instances where the challenger may agree (although it may be against their best interests) to allow for continued use of the domain name by the domain name holder while the dispute is settled. Perhaps this is one of the areas where NSI may use its "may" provisions of the policy.

Notice of Policy Changes

Most contracts between parties contain a "notice" provision. The notice provision generally tells people where and how they must send notice to the other party, generally when some sort of action is required to be performed. Most contracts also provide that the contract can only be changed by a writing signed by both parties, but it is clear that NSI did not wish to grant that authority to domain name holders.

Trademarks and Domain Names

The purpose of a trademark is to identify the maker of a good or a service. The mark is to be displayed on brochures or on labels, or on the goods themselves to keep from confusing the consumer as to where a product was made.

While more information about trademarks and how to obtain them will be provided in a subsequent article in this series, here is an overview of the trademark process and its costs:

The InterNIC and Trademarks

It is curious that in a recent speech, David Graves of NSI stated that there was no known correlation between trademark law and domain names. A domain name is a verbal address that is used by humans in place of the numeric IP address that computers and network routers care about. As such, a domain name is much more an identifier than a mark one would place on a good or service to determine its origin. Congress has not as yet spoken to some trademark holder's claims that ownership of the trademark made automatic their ownership of a domain name, regardless of whether someone else had registered that name.

Regardless of the lack of legislative action, and the normal workings of the law in trademark disputes, NSI has decided that trademark can be used as a sort of "trump card," ensuring that trademark holders receive special treatment with regard to domain name holders. In all other legal situations, in order for a trademark holder to stop someone from using a similar or identical name, the trademark holder would have to show that its mark was being infringed. That is not necessary in NSI's policy. In order to get a domain name taken away, essentially all that is needed is for a trademark holder to send a domain name holder a letter alleging that that mark is being infringed. The domain name holder is then put on the defensive, and risks significant chance of losing the domain name regardless of what actions are taken.

In US trademark law, many different people can have the same name trademarked for different purposes, or in different "classes." A "class" consists of a grouping of similar products, such as class 10 for surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; orthopedic articles and suture materials. Since the primary purpose of trademark law is to protect the consumer from being fooled as to the source of a product, these class designations make sense. It would be difficult for most people to believe the Cadillac cars also made Cadillac cat food. This branch of law was clearly created to protect the less sophisticated consumer from making errors of this type.

In the normal course of business in trademark law, in order to succeed with a claim of infringement, a trademark holder must show infringement in the class in which the trademark is held. This is, of course, impossible in an arena where there are no classes, such as the Internet. Applying trademark law to the Internet immediately raises two important distinctions. The first is that on the net, there is only one possible use for any given name in the .COM domain. Since .COM is the most used and therefore most coveted address, competition between US federally registered trademark holders and foreign registered trademark holders, will surely make for an impossible situation if NSI insists on its current procedure of using federal trademark as a "trump" card. The second is that domain names are not necessarily used for goods or services, which are the only two categories which the Lanham Act speaks to.

Given that NSI itself feels that there is no real correlation between trademark law and ownership of domain names, and the ill fit between trademark law and domain identifiers from both a legal perspective as well as a technical one, NSI's insistence on providing certain trademark owners (arguably the first who comes along) with the de facto authority to have a domain made unavailable to its registrant is largely incoherent and without foundation in either law or logic.

International Issues

NSI is responsible for registration all domain names in the most coveted .COM domain. Of course, this includes international commercial entities as well. However, trademark law is not international. Each country's trademark laws differ enough that many trademark lawyers specialize in specific countries for companies dealing multi nationally. Large US corporations may hold trademarks in 10 or more different countries, each with differing expiration dates, requirements for maintaining the trademark, quirks in the registration process, etc.

It is our interpretation of the above letter that NSF did not have the authority to give the Commerce Department in the first place, making any claims regarding the chain of authority from Commerce to ICANN dubious at best. If NSF has totally and completely relinquished ownership control of the whois database to NSI, it will be difficult to put that genie back in its bottle.

Further, Glen B. Manishen, Esq. Has done his own analysis of the DOC’s ability to give ICANN authority. What follows are excerpts from an interview Mr. Manishen conducted with Gordon Cook and published in the May 1999 "Cook Report",⁽⁹⁾

No. This doctrine is not applicable to the Internet. The Internet is not a broadcast medium, and is much more like publishing a newspaper or a magazine. Registrars should not be allowed to determine what is appropriate or inappropriate registration. Given the international nature of the Internet, some words and/or parts of words that Americans may find offensive may be descriptive words in other languages.

Please see the response to part "a" of this question. DNRC feels that registries should be under the same obligation as registrars to register domain names without subjective determinations of appropriateness.

The Department of Commerce has no known authority to be involved in Internet matters other than developing policy recommendations for the Executive Branch - nor should it have such authority. The Department's Internet related activities have occurred through the NTIA - which was created by and historically served to represent the interests of the Executive Branch and the White House, not the interests of the private sector or industry.

The latter role, regarding the interests of the private sector and industry, is that of the FCC which has long taken a "hands off" policy with respect to the Internet under its Computer I, II, and III policies. This policy significantly enabled and fostered the development of the Internet, in the face of actions by the Dept of Commerce which was attempting to force acceptance of other networking technologies such as OSI.

Further, if one agrees that the Internet is, by definition, an international activity, one would have to question the ability for the United States government to "compete" an award for this type of operation. Even assuming that there was USG authority, we would have to question the mechanics for determining a "responsive and responsible" offeror in parts of the world away from the U.S.

There is no technical reason why any number of TLD registries cannot be created immediately for what is generically a simple Internet host tagging service using a distributed domain database architecture for resolving tags. The COM, ORG, and NET business and intellectual property was acquired by NSI through an NSF award - in the same fashion as 820 awardees have acquired similar assets through 5,280 projects over the past fifteen years. Virtually every major contemporary Internet business sector today was build on such awards.

The Internet community has been consulted on numerous occasions regarding the need for a domain name dispute policy. In each consensus call at each IFWP meeting, no consensus was achieved as to the necessity of these policies. Court systems in most countries have extensive experience in trademark dispute issues. They are best qualified and experienced to address these disputes. Please note that WIPO has done exactly zero domain name dispute arbitrations to date.

Yes, the GAC both in its creation and its conduct has taken numerous actions inconsistent with the intended role of governmental representatives. An example published 8/25/99 from the ICANN Santiago meeting is as follows:

Point #2 is especially troublesome to countries that already have a strong tradition of protecting intellectual property rights, regardless of where they may be found. This provision would essentially create new law with no accountability or legislative review, and would strip countries like the United States of any proprietary rights in their Top Level Domains, including the .US domain. This was done despite J. Beckwith Burr’s involvement as the United States representative to the GAC.

The basis for a GAC was established in the Dept of Commerce White Paper requirement that "governments and intergovernmental organizations [should participate] as Internet users or in a non-voting advisory capacity." As such, it was expected that individuals employed with government agencies or intergovernmental organizations worldwide would participate independently in some fashion in ICANN's various activities as "users." Furthermore, it s not apparent what other legitimate interest governments might have in the coordination of network names and addresses among the millions of private networks that constitute the Internet, other than as users.

However, at the initiative of the European Union, certain provisions were placed in ICANN's Articles of Incorporation and Bylaws that created the GAC as an autonomous global intergovernmental body nominally within ICANN, and invested it with the power to make "findings and recommendations...on the activities of the Corporation as they relate to concerns of governments, particularly matters where there may be an interaction between the Corporation's policies and various laws, and international agreements⁽¹⁰⁾."

This role was further enhanced by an explicit interlocking requirements in ICANN's Articles of Incorporation that "the Corporation shall operate..., carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law."

ICANN's Bylaws actually require that prior to making any substantive decision, "the Board will notify the chairman of the Governmental Advisory Committee...and will consider any response to that notification prior to taking action." Thus, the ICANN Board is obliged to constantly interact with this new intergovernmental body and obtain its findings and recommendations on all substantive matters.

The GAC was constituted in early 1999 by appointing the head of Australia's central telecom and information network regulatory body, who in turn used the membership contact list of the UN intergovernmental telecom ministry and regulatory organization - the International Telecommunication Union - to constitute the GAC membership. The European Union appointees to the ICANN Board - Eugenio Triana and Hans Kraaijenbrink - have served as the Board liaisons to the GAC since its inception. Kraaijenbrink also an Executive Board member of the European organization of public telecommunication providers.

From its inception, the GAC Chair has repeatedly asserted that the GAC provides ICANN with its "legitimacy," has the right to act autonomously and has done so in defining its jurisdiction, authority, and members, in adopting its own rules of procedure and membership requirements, and in promulgating general DNS related norms as Operating Principles. The last makes the rather extreme finding that "the Internet naming and addressing system is a public resource."

The GAC has adamantly opposed any open activities except an occasional open PR briefing, claiming that this secrecy is necessary for effective collaboration among governments. It has also self-asserted its existence as an intergovernmental body by amending its membership requirements to constitute only nations, and ejecting from its meetings, those who did not meet the requirements of being a plenipotentiary of a nation State.

The GAC asserts that it is subject to its own rules.

The GAC is not needed and should never have been created. Most parties assumed that the White Paper participatory statement would simply be met by "government users" participating in policy committees and discussion groups like everyone else.

Assuming its continued existence, the GAC should not exist as an intergovernmental body (i.e., its members constituting nations), but as an advisory committee of individuals having an association with or otherwise representing expertise or interests of governmental and intergovernmental entities.

The GAC should not be allowed to make formal findings and recommendations as an intergovernmental body on matters of international and domestic law.

The GAC should not be allowed to be autonomously chaired by a government official who determines and accredits its membership and maintains its secretariat.

The GAC should not be allowed to be conduct any of its activities or maintain documents in secret, and operate fully in the open. A representative from Ralph Nader’s consumer organization was ejected from the GAC meeting in Santiago, despite GAC’s decision to allow observers from the World Intellectual Property Organization.

First of all, ICANN must get its expenses under control. ICANN's role and practices are potentially subject to enormous abuse as a non-profit organization. If it played the minimalist coordinating role of its predecessor IANA Secretariat, ICANN would need only sufficient money to pay two part-time researchers.

The Internet community was told that Jones Day was providing legal fees on a "pro-bono" basis. Imagine our surprise when we found that $500,000 was owed in back legal fees. Further, a salary of $18,000 per month for a CEO with no relevant experience, in a position that both BWG and ORSC proposed to cut out of the ICANN bylaws is grossly excessive.

Once ICANN’s costs are under control, one way to control ICANN's potential adverse and abusive behavior is to insist on a funding arrangement that derives from services actually directly performed that its clients will pay for. The worst approach is what they have attempted - simply assess an arbitrary tax on their clients' assets.

We propose that ICANN draw up a neutral, non-discriminatory schedule of fees for specific services that reflects ICANN’s actual costs. This cost should then be passed on to its client base. Unfortunately, ICANN has shown a complete inability to keep costs under control that would have sunk any other start-up company without the significant favoritism that has been shown to ICANN.. As a co-founder of a successful Internet start-up, I am personally highly concerned regarding some of ICANN’s expenditures. A small group is all that is necessary to manage the function of "technical coordination." Further, a technical group charged with management of Internet assets should utilize the medium it is managing for all meetings. There is no need for the lavish expenditures necessary to fly board members, technicians, and their outside counsel to expensive locations around the world.

Perhaps the most confusing expenditures, however, are those for a public relations firm, over $500,000 for an anti-trust attorney who has stated he has no corporate experience, and $18,000 for a CEO. If my company, InterCon Systems Corporation, had attempted to contract for these types of expenses, its would not have lasted 2 months. It would never have received loans from companies such as MCI and Cisco, would never have received over half a million dollars in "credit" from the Jones Day law firm (since paid through the loans from MCI and Cisco), and would never have been able to afford a public relations firm. Such an insolvent company would never have received a US government contract to control such a vast and important resource as the Internet.

Further, ICANN has largely ignored the mandates of the Department of Commerce in the White Paper, and its subsequent letters calling for consensus with BWG and ORSC would have brought the contract itself into question. Under ordinary US Government contracting procedures, ICANN would be considered to be in violation of the terms of its contract in a manner requiring the contracting agency to assume direct, immediate control of the activity or else to determine the continuing availability of competing bidders to take immediate control of the work in a manner that ensures full contract compliance.

ICANN’s mismanagement of funds, inability to keep its cost down to a reasonable level, and inability to perform the functions it was contracted to do, should call for an immediate recompetition of the contract. The concept of ICANN is a good one. This particular implementation is so badly flawed that it would be far simpler to start over than to attempt to salvage this organization.

Respectfully submitted,

Michaela (Mikki) Barry /S/