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[ga] lawyer Joe Sims to John Gilmore: "Doesn't have a clue" or ICANN must go!
All assembly members, stakeholders and interested parties,
Is John or Joe telling the truth? Well, you be the judge...
FYI:
From Politech:
Subject: FC: ICANN lawyer Joe Sims to John Gilmore: "Doesn't have a
clue"
Date: Wed, 03 Jul 2002 19:22:37 -0400
From: Declan McCullagh <declan@well.com>
To: politech@politechbot.com
CC: jsims@JonesDay.com, gnu@toad.com
Previous Politech message:
"Salon interviews John Gilmore: 'It's time for ICANN to go'"
http://www.politechbot.com/p-03710.html
---
Subject: Response to John Gilmore
To: dave@farber.net, Declan McCullagh <declan@well.com>
From: "Joe Sims" <jsims@JonesDay.com>
Date: Wed, 3 Jul 2002 15:15:56 -0400
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 both of 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 warzone, 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 were
that they were either unworkable, or as illustrated by the
UN point, just plain silly.
2. Gilmore's understanding of the Auerbach litigation is either
incomplete or disengenuous. The issue in the Auerbach litigation
is whether each individual director of a non-profit 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 disengenuous.
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 dsyfunctional.
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 US government, and he certainly
demonstrates no understanding at all of the complicated geo-political
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 US
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 US 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
Gilmore's of the world simply demonstrate how incredibly
parochial some people can be. ICANN must accomodate
all those views, ranging from the Gilmore's 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 most of what he is talking about, and thus his views are basically
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.
Joe Sims
Jones Day Reavis & Pogue
51 Louisiana Avenue NW
Washington, D.C. 20001
Direct Phone: 1.202.879.3863
Direct Fax: 1.202.626.1747
Mobile Phone: 1.703.629.3963
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