Elections

[Cheryl Preston]

I am sorry I was not able to return your messages from any time after Thursdays morning.  I have been traveling.  I had a couple of stop overs on my way to LA for the ICANN meetings.  I see you have found two drafts of my papers online.  I have materials on two others discussing other alternatives that are not yet online if you are interested after the meeting.

With respect to the merits of your prior inquiry about my position on WHOIS:

  I think that the NCUC needs to carefully study issues such as the WHOIS, comment and make recommendations on places where the language, processes, or technology are unclear, could be improved, or need to be replaced.  The NCUC should try to be positive force in working through issues and reaching a solution.  I personally believe that the existing WHOIS documents need serious refining and rethinking.  

BUT, I currently see no hope that the global consensus is going to reach total abandonment of WHOIS without replacing it with something that allows, upon service of an appropriate court order or in compliance with treaty rights or otherwise, some mechanism whereby those to whom ICANN and IANA (and their contractually empowered, substructure agents) have granted power to access to the root can be held responsible for seriously illegal activity based on international law standards.  We seem to be able to run the high seas and air space and other global resources with some consensus.  The answer has never been to abolish all registration information on boats or airplanes.

I think the best use of the NCUC's time is to try to work together with others to find legal, technical and contractual ways to strike the critical balance between regulation and none, assuring as much freedom and privacy as possible without pretending that a complete lack of accountability will result in anything but lawless co-option of the Internet by those who are so corrupt or greedy to take it over for themselves.  I can't think of any time, place or environment throughout the history of humanity where there was a regulation vacuum.  If governments and treaties can't control any valuable resource with a democratic, consensus balance of power, other powerful forces will come in and fill it with their own objectives.  And these others have never been to concerned about the equality and wellbeing of humanity.

So as Larry Lessig explains in the introduction to Code2, we can't kid ourselves into believing that (1) there is still any free Internet frontier -- in the absence of government, commercial powers have taken over; and (2) there is privacy where those with sufficient incentive cannot follow every keystroke we make, every legitimate payment, every use of a URL.  Just dropping WHOIS won't change this.  Now, only those with enough money or jail time at stake to use very sophisticated schemes of laundering can obtain real "privacy."  Sensible people without that much money or jail time at risk need to come together and create the best scheme we can to find a constitution of Internet rights and privacy for ordinary folks.

In my view, tearing down; dumping WHOIS; digging in at any extreme is not going solve anything in the long run.  If, for the sake of argument, the NCUC voting members cannot agree with any kind or configuration of WHOIS, then let's start working on some alternative.  But before we decide that, we ought to reach out to find what more than a handful of non-commercial users want.  As I have said earlier, I don't perceive that much of the current NCUC agenda is aimed at determining or reflecting the interests of the majority of non-commercial users.  Some may wonder if there aren't commercial interests out there who are being much better served by the current single focus agenda.

But then, I might be wrong.  But just opposing everything doesn't seem right either.  Let's talk about it.

In addition, I think it only appropriate that everyone who is running for any NCUC office, whether there is currently an opponent or not, also offer, as openly as I have, a statement of their personal views and biases and their vision for how NCUC can help make something better and truly workable for all the non-commercial users of the Internet.

Also, I have one other question.  I have read from various blogs and online email chains references to the NCUC paying for airfare and other expenses for some to attend various meetings, etc.  I am just trying to figure out where those funds come from and how much is available.  Milton, can you tell us?  Is it the membership application fees?  Are there lots of members who are not involved in the email list?

Thanks,

Cheryl B. Preston
Edwin M. Thomas
Professor of Law
J. Reuben Clark Law School
Brigham Young University
424 JRCB
Provo, UT  84602
(801) 422-2312
prestonc at lawgate.byu.edu
>>> Robin Gross <robin at ipjustice.org> 10/27/07 6:40 PM >>>
Cheryl,

Your unwillingness to tell us your own agenda for ICANN led me to 
inquire myself.  

I note your two recent submissions to the IGF detailing your proposal to 
follow the example of the trademark industry and use ICANN as a 
pinch-point to impose a particular set of policy values on the Internet 
community.

"ICANN can: Contracts and Porn Sites"  
http://www.intgovforum.org/Substantive_2nd_IGF/Cheryl%20Preston_ICANN%20Can_Contracts%20and%20Porn%20Sites.pdf

"Children and Internet Pornography: The Nature of the Problem and the 
Technologies for a Solution"  
http://www.intgovforum.org/Substantive_2nd_IGF/Children%20and%20Internet%20Pornography_The%20Nature%20of%20the%20Problem%20%20and%20the%20Technologies.pdf

Robin