Another point of View for those listening to COOK & Farmer rant

[Gordon Cook]

>X-Sender: rme...@pop.mhsc.com
>Date: Tue, 25 Aug 1998 16:42:43 -0700
>To: domain...@open-rsc.org
>From: "Roeland M.J. Meyer" <rme...@mhsc.com>
>Subject: Any comments from ORSC on this? The IANA ByLaws - Third
> Iteration
>Cc: domain...@open-rsc.org, Jon Postel <pos...@isi.edu>,
> "Domain Policy List"<DOMAIN...@LISTS.INTERNIC.NET>
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>
>As promised. These are my comments, in detail.
>
>REFERENCES:
>
>FAQ: <http://www.iana.org/message-faqs.html>
>Articles: <http://www.iana.org/articles1.html>
>By-Laws: <http://www.iana.org/bylaws3.html>
>
>Note: I have downloaded all three and converted them to PDF format, as I
>did with the NSI documents. I can make them available on request.
>
>The first two items are reasonable in size and I can comment with included
>text, in the usual fashion. However, the bylaws are huge (54 pages). I will
>comment only on selected By-Law points and will not include all selected
>By-Law text.
>
>PROCESS:
>Since Stef was so kind as to include the FAQ here, I will use his message
>as a basis for reply to the FAQ itself. But, I am checking against the
>actual FAQ, from IANA, and since the FAQ is on the By-Laws I will be
>comparing the FAQ to those as well.
>
>SUMMARY:
>
>The latest draft-Postel is a farce, almost as bad as the last draft-Postel.
>The consessions made in this new one are hollow concessions. Absolute power
>still resides with the BOD and has no remedy. The SOs are powerless facades
>and the ACs are puppets of the BOD. There is no real empowerment below the
>level of the BOD. More importantly to ORSC, the Root Server Avisory
>Committee (RSAC) is not under the control of the Names Council SO, further
>reducing the effectiveness of the NCSO.
>
>At 07:52 PM 8/24/98 -0700, st...@nma.com wrote:
>>Jon will present it to the IETF Plenary on Wednesday evening.
>
>I hope you have this in time for the floor discussion.
>
>>There will be an open IESG and open IAB sesson afterwards, which are open
>>to comments and questions from the floor.
>>
>>My main question is whther or not Jon has finally included appropriate
>>consensus concepts from the IFWP and other relevant efforts to resolve
>>the issues.
>
>No, the answer is "No". The NSI document was a *lot* closer, on its first
>draft, than IANA's current draft. With the changes that Dan and I
>discussed, it is certainly superior. However, both must be work into closer
>compliance with the results of the Singapore meeting. Too bad specific
>consensus calls were not made in Singapore.
>
>As I detail later in this massive e-mail<grin> The SOs are as functional as
>your appendix. They exist solely at the sufferance of the BOD and are
>directly under BOD control at all times. The SO representatives, to the
>BOD, are also discharged from any affiliation with the SO that brought them
>there. Ergo, a broken accountability chain. In addition, specifically to
>ORSC, the Root Server Advisory Committee (RSAC) is specifically NOT under
>the authority of the Names Council SO and is indeed independent from it.
>This is aside from the fact that the Names Council SO has no authority in
>the first-place. To make matters worse, the RSAC has absolutely no
>authority either, being only an Advisory Committee to the BOD with no BOD
>power or authority.
>
>>As I read the comments below, I tend to feel that Jon has incorporated a
>>number of our ORSC ideas and concepts, but these cmments are not the
>governing
>>texts, so I would like to hear from ORSC what you think of of the actual new
>>version 3 bylaws from Jon.
>
>COMMENTARY (INTRODUCTION):
>
>>>For several months now, we at the IANA have been working with many
>
>>>others in the Internet community to create a beginning structure for a
>>>New IANA, capable of taking on the somewhat broader responsibilities
>>>envisioned in the White Paper. We have had too many conversations to
>>>count, participated in one way or another in nearly all of the
>>>meetings held around the world to discuss this subject, and received
>>>comments and suggestions via e-mail from hundreds of individuals and
>>>organizations.
>
>But, IANA has NOT been participating on the public mail-lists. In fact,
>they have been conspicuously absent from the public electronic debate.
>
>>>We have tried faithfully to serve as an "honest broker", seeking to
>>>combine all this input into concepts and documents that would have the
>>>broadest possible acceptance from all parts of the Internet community.
>
>A broker deals in two-way communications. IANA has been decidedly one-way.
>They take input and make decrees.
>
>>>We are now coming to the end of this long process. I believe the
>>>result is a proposal for a New IANA that does have the support of a
>>>substantial majority of the Internet community.
>
>This is a broadly stated belief that can not be proven to be true.
>
>>>There have been a number of changes made from the second iteration in
>>>direct response to specific comments and suggestions, including the
>>>following:
>
>NSI gave a counter-proposal, critiqued by Dan and myself, which I see
>little sign of, in any of the IANA documents. Except, perhaps, the format
>of the By-Laws.
>
>>> -- several comments suggested there should be specific
>>> guidelines to insure that the Supporting Organizations (SOs)
>>> were in fact open and inclusive. Additional specific criteria
>>> were added.
>
>On By-Laws pages 31 thru 37
>
>The BOD has absolute veto power over, membership, regulations, policies,
>and structure. There is no remedy for an SO that would object. Ergo,
>however much the SO's are "open", this is completely lost in the BOD power
>over the SO. This is especially egregious in light of the fact that the SOs
>are expected to be the primary funding sources for the new corp. In other
>words, "you get the money and I'll tell you what you *have* to do with it.
>BTW, do it while inverted."
>
>This looks too much like a ministry and it's not very open.
>
>>> -- proposed language that made it clear that every Board
>>> member, no matter how selected, owed his or her legal and
>>> fiduciary duty to the Corporation, rather than to a particular
>>> SO, employer or other entity, was added.
>
>This nullifies the constituency of each BOD member. The three members
>selected by the Names Council, for example, are no longer beholden to their
>constituency. They can vote against the Names Council "for the good of the
>Corporation" and not be held liable. This radically attenuates
>accountability. Further, given the control mentioned above, it further
>reduces the voice of the SOs on the BOD and further reduces the chain of
>responsibility which should restrain the BOD from unilateral actions.
>
>>> -- in response to concerns that industry users were not
>>> sufficiently represented, specific language was added to make
>>> it clear that industry and other users are an important
>>> constituency whose input must be given appropriate weight in
>
>>> both the Corporation and particularly in the Names Supporting
>>> Organization and Council.
>
>The way this is structured, the SO's are a sop. They have no real power and
>can be over-ridden consistently with no recourse. It has long been proven
>that you control organizations two ways, money and membership control. In
>this case, the BOD also has the option of simply ignoring what the SO does,
>or control the SOs action directly. The SO can not refuse a BOD
>directive/decree, regardless of reason.
>
>>> -- the transparency requirements were expanded in response to
>>> specific suggestions to require more notice of meetings,
>>> disclosure of payments to directors, disclosure of reasons why
>>> any particular Board action is not publicly disclosed (for
>>> example, sensitive personnel matters) and to add a specific
>>> timing requirement for the public posting of Board minutes.
>>>
>>> -- the prohibition against governmental officials becoming
>>> members of the Board was clarified and narrowed in response to
>>> concerns that it would inappropriately exclude knowledgeable
>>> people from many parts of the world, and the geographic
>>> diversity requirement was clarified by adopting a specific
>>> suggestion.
>
>>> -- the funding provisions were adjusted to make it clear that
>>> the Board sets the funding mechanism and levels, and to make it
>>> clear that the SOs are a primary (but not necessarily
>>> exclusive) source of funding.
>
>So the BOD, sets the funding constraints and the SO's have to live with it,
>yet generate most of the funding. Not acceptable.
>
>>> -- two specific Advisory Committees (for Governments and the
>>> Root Server) were established in response to specific
>>> suggestions.
>
>By-Laws - pages 40 thru 42
>Wrong! The Root Server AC should be under the Names Council SO. It should
>NOT be separate from that SO. That SO should also control its formation and
>structure. Not only has the SO been neutered, but its single point of
>authority (its heart) has been removed to an AC that isn't even indirectly
>tied to it! The AC is strictly a BOD tool with no visible connection to the
>relevent SO. One of the two doesn't need to exist.
>
>I also suggest a Governmental SO to house the Governmental AC.
>
>>>It is clear from some of the comments we received, and some of the
>>>public statements that have been made, that some of the provisions of
>
>>>earlier drafts were not understood by all who read the document.
>
>Au contrare, they were quite well understood. We just liked the NSI
>document better, still do.
>
>>>It is important to remember that the goal is to produce an
>>>organization that will be recognized around the world as the
>>>legitimate body to undertake the coordination tasks that the White
>>>Paper sets forth as necessary to the continuing stability and security
>>>of the Internet. The New IANA must have legitimacy -- that is, it
>>>must be supported by a consensus of what the White Paper calls the
>>>"stakeholders".
>
>I don't see how setting up IANA as a ministry, with dictatorial powers, is
>going to gain consensus.
>
>>>time that we have to actually form the new organization. The critical
>>>goal -- the one that cannot be postponed -- is the creation of a
>>>consensus organization sufficiently ahead of September 30, 1998, that
>
>This is a point we can agree on.
>
>>>This limited objective is difficult enough; "global" and "consensus"
>>>are two very difficult concepts in this context. But it cannot
>>>possibly be accomplished if the various stakeholders are not willing
>>>to, in good faith, create what can and must be done now -- a
>>>legitimate consensus organization -- and defer for the Board's later
>
>Yes, and you can start by coming down off your damned high-horse and
>talking turkey with the rest of us. When are you going to "get it" that
>decrees are no longer acceptable?
>
>>>consideration those issues which require additional open dialog both
>>>with and within the Supporting Organizations and the broader Internet
>
>>>community. This has been the objective of the IANA drafts from the
>>>beginning and it continues to be the objective now -- to find the
>>>common ground around which a sufficient number of stakeholders can
>>>coalesce so that it can fairly be described as a consensus
>>>organization.
>
>It is not a consensus organization. It is only supported by the I* which
>has no commercial consensus backing. Evidence of this is the sheer
>existance of the Open Root Server Confederation (ORSC). IANA must
>participate in the evolution of ideas that is supported by the ORSC.
>Decrees don't work.
>
>
>COMMENTARY (FAQ):
>
>>>1. Why don't the draft bylaws simply provide for a single world-wide
>>>membership of Internet users?
>>>
>>> This entity is basically an administrative entity, not a governance
>>>entity. Its primary purpose will be to preserve the stability and security
>>>of the Internet, and that purpose will involve technical coordination
>>>issues to a very significant extent. Thus, a major -- arguably the most
>>>important -- task of the New IANA will be to do what the old IANA has done:
>>>ensure that the Internet functions efficiently from a technical
>>>perspective. The practical reality is that universal suffrage -- at least
>[snip]
>>>Internet. By instead creating as the working part of the New IANA several
>>>SO's, which will be required to have open and inclusive membership rules
>>>and will be principally responsible for the development of policies, the
>>>New IANA will be able to keep the technical aspects of the Internet stable
>>>and secure in a manner that is responsive to the stakeholders.
>
>As noted earlier (above) the SOs are a sop to this end. They have neither
>power or control.
>
>>>2. Why did the most recent drafts of the IANA bylaws omit a Supporting
>
>>>Organization for Industry and Users?
>>>
>>> The original IANA draft bylaws called for the creation of four
>>>Supporting Organizations (Protocols, Addresses, Names and Industry/Users)
>>>that were intended to represent the various stakeholders populate the New
>>>IANA's board. There seemed to be a general consensus in favor of the first
>>>three of these SO's, but widespread criticism of the Industry/User SO.
>>>Although there was universal recognition that industry and other users were
>[snip]
>>>effective functioning of the important technical and policy decision making
>>>of the SO's, they and the Initial Board were specifically charged with
>>>considering this issue. Thus, the approach used in the IANA draft bylaws
>>>was to have half of the Board selected by the SO's, which are clearly
>>>membership organizations, and the other half be At Large members, charged
>>>with representing the broad public interest, and to assign to the Initial
>>>Board the difficult job of figuring out what means of Board selection and
>>>SO membership would best balance the need for proper accountability and the
>>>need for an effectively functioning organization.
>
>This is a bunch of steer manure. The SOs have no power.
>
>>>3. Why doesn't the IANA support a single world-wide membership open
>>>to all interested persons, with "nominal" dues, voting by proxy, and
>>>with the right of any member to appeal decisions that are made. Isn't
>>>that approach preferable?
>>>
>>> We do not believe that any of the proposals we have seen so far
>>>adequately address the problems that are inherent in such an approach.
>>>First, such unstructured membership provisions could rather easily be
>>>manipulated by a determined minority to capture control of the New IANA.
>
>So you are operating on deeply-held belief, rather than sound theory? I
>disagree with this statement, but it is an article of faith with IANA.
>Ergo, no argument is possible.
>
>>>The combination of "nominal" dues, a relatively small quorum requirement
>>>(which would probably be essential to ever allow any business to take
>>>place) and the use of proxies would make it very easy to stack any
>
>>>particular meeting simply by paying the nominal membership fees of a large
>>>number of people and then obtaining their proxies. In addition, the
>>>practical difficulties in keeping records relating to individual members
>>>from all around the world, and authenticating their votes (and proxies),
>>>would be very substantial -- and undoubtedly very expensive.
>
>Not, it is actually very cheap once it's started. The expense is in the
>initial build. The word is "automation", see any MIS department, or telco
>(RBOC, LEC, CLEC, etc). they do it all the time.
>
>>> These points are illustrative of the kinds of problems with very broad
>>>and open membership rules. The "bottom up" process set forth in the IANA
>>>draft bylaws -- where open and inclusive Supporting Organizations are the
>>>primary source of policy initiatives and half of the Board is selected to
>
>If power truely redsided in the SO's MHSC wouldn't have a problem with most
>of this. But it doesn't. The SOs are a transparent sop to reduce the
>criticism leveled, justly, at IANA.
>
>>>4. What authority do the IANA draft bylaws give to the Supporting
>>>Organizations, and what authority do they give the Board?
>
>The answer to this is not consistent with the By-Laws.
>
>>>5. Why do the draft bylaws provide for incorporation in California? Since
>>>most companies are incorporated in Delaware, isn't that a better choice?
>>>
>>> There has been surprising amount of attention to this subject, which
>>>would seem to be a technical matter of little importance. There seems to
>
>It is very important, as any of us whom have actually incorporated have
>come to realize. It is NOT a minor technical matter.
>
>
>>>be general agreement that, as set forth in the White Paper, the New IANA
>>>should be a U.S. non-profit, tax exempt corporation. This follows a
>>>well-known pattern for service organizations of this kind. If such an
>>>entity is incorporated in the U.S., one must choose one of the states.
>
>>>Delaware is the most popular state for for-profit corporations, because its
>>>laws governing for-profit corporations are well-developed and generally
>>>favorable to the prerogatives of management. The Delaware law on
>>>non-profit corporations, however, is not as well developed. In fact,
>>>Delaware does not even have a specific non-profit corporation code, and
>>>instead relies on its general corporation law for the formation and
>>>operation of non-profit corporations. This reliance has led to litigation,
>
>>>and some uncertainty, as to the applicability of certain provisions of the
>>>general corporate law to non-profits. California, on the other hand, is a
>>>large and populous state with a specific non-profit corporation code and a
>>>very well-developed body of law dealing with non-profit organizations. In
>>>addition, because of the high concentration of high technology companies
>>>and other scientific activities in California, the California courts may be
>>>more aware of and knowledgeable about technology issues than the courts in
>
>Just because California has specific laws about non-profits, doesn't make
>it better. It could actually be worse. Delaware has minimal costs and
>minimal controls. This is *always* better than massive controls and
>changing goal-posts, as California is fond of doing. From personal
>experience, California flys the "Jolly Roger" over its capitol building,
>right under the "Bear".
>
>My Delaware law book "Delaware Corporation Laws, Annotated, 1996-1997
>Edition" is all of one inch thick, and it's complete. Similar California
>references are multiple massive volumes. This is NOT good, IMHO. The fact
>that they have specific non-profit laws means that California non-profits
>are chained to someone elses view on how things-should-be. That is never a
>good thing.
>
>My point is that this shouldn't be undertaken lightly, or without specific
>cause.
>
>>>many other states. Thus, California seems a logical choice. We are
>>>unaware of a compelling argument for any other state, even though we have
>>>solicited that information on several occasions. If such a compelling
>>>argument exists, we would be glad to consider it, and if it is indeed
>>>compelling, we would certainly have no objection to taking advantage of
>>>that preferable jurisdiction.
>
>_________________________________________________
>Morgan Hill Software Company, Inc.
>Roeland M.J. Meyer, ISOC
>(RM993)
>President and CEO.
>e-mail: <mailto:rme...@mhsc.com>mailto:rme...@mhsc.com
>Web-pages: <http://www.mhsc.com/~rmeyer>http://www.mhsc.com/~rmeyer
>Web-site: <http://www.mhsc.com>http://www.mhsc.com
>Colorado Springs, CO - Livermore, CA - Morgan Hill, CA
>-----------------------------------------(legal notice)--------
>Note: Statements made in this message do not
> necessarily reflect the position of MHSC. All
> forcasts and projections are to be considered
> as forward-looking and presume conditions which
> may not be referenced herein.
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