It's not entirely clear why ICANN would think it beneficial to enter this into the court record -- maybe to paint the case as a personal vendetta, maybe to imply that Auerbach will irresponsibly distribute the financial documents he's requested, maybe to insinuate that the case is a part of a larger attack, maybe some or all of the above. Cerf's terse declaration sheds no light on the strategy behind it, of course; but it does present a very strange (at least to this not-a-lawyer) counterpoint to Gilmore's ferocious criticism.
Date: Tue, 19 Mar 2002 14:26:26 -0800
From: John Gilmore
Subject: Re: ICANN: Auerbach's Allegations Off Target
To: firstname.lastname@example.org, email@example.com
> "Karl paints this as a dispute between him and ICANN management, but
> nothing could be further from the truth," noted Board chairman Vint Cerf.
> "ICANN management is merely carrying out its obligation to follow the
> wishes of the Board as a whole rather than follow the dictates of any
> single Director."
I haven't wanted to disrupt our friendship, so I've held off a long time in telling you what I think about how you are leading ICANN. That's why this message is a little longer than it needs to be; I'm saying things that I've been bottling up for a while.
I don't want to be considered a friend of what you now stand for.
You are on the wrong side of this issue, as you have been on the wrong side of many issues regarding ICANN. If ICANN has secrets about who it is doing backdoor favors with, those *should* be made public. And you, as Chairman, as the most prominent and trusted board member, and as the architect of the openness that should still be in the Internet, should have been way ahead of Karl Auerbach in making them public.
Even if those secrets are never made public, or even if there are no terrible secrets inside ICANN, the activities of ICANN MUST be available to every person on the Board of Directors. Without restriction, without delay, without subversion. By law, and for good reasons.
You have been a rubber stamp for many corrupt ideas out of Network Solutions, Verisign and ICANN ever since your election. When I complained to you in the past, such as when the NSI contract was amended to give them a perpetual monopoly, you said that there was nothing else that you could do. I disagreed with that sentiment then, and I disagree with it now. You could have left the contract the way it was, rather than amend it. You don't even have to make things better to keep my respect; you could keep things from getting worse. But you continue to choose to make things worse. Now you are defending ICANN's lack of openness even with its own elected directors!
ICANN was created to promise openness, transparency, accountability, and competition. It has provided none of those, and actively works every month to reduce what little it has provided. You have worked with it to eliminate, rather than create, those promises.
Opening whatever squirming can of worms that is calling the shots at ICANN is what is needed. I can see that ICANN management is terrified that directors from outside the old-boy network might actually find out the details of what ICANN does day by day. They have eliminated any future threat of that, by eliminating outside directors after this term. And they are delaying the current directors' access to information, in the hope that they can permanently avoid outside scrutiny.
I've been a director of several California corporations. I've read that part of the law myself. I've invoked it in a couple of occasions. I contributed significant funding for Karl's lawsuit. Karl is right and you and the ICANN staff are wrong. And now I find you lying about it in a press release. "ICANN management is merely carrying out its obligation to follow the wishes of the Board as a whole..." ICANN *management* instigated those policies, the board didn't. The board has never even considered them.
Virtually everyone at EFF has been looking for ways that we could help to open ICANN and get it to do what it was chartered to do. I've had to hold them back for years, telling them that participation was a waste of our scarce time -- and that no matter how much time they put in, ICANN would have to get really bad before it would ever get better. I put two years of my own life into the domain-name issues, with CORE. It became clear that the strings were being pulled behind the scenes, because the right answers were relatively obvious, yet the wrong answers got approved, providing billions of dollars of benefit to certain parties with heavy ties to the US military. Rather than ICANN making open decisions and using transparent processes, whoever pulls those strings is still controlling what happens. But under ICANN, the process is even murkier and further hidden from public scrutiny. And you're helping.
All the way back at the start of ICANN, EFF and I proposed amendments that would provide a "Bill of Rights" and a "Sunshine Act" and a "Freedom of Information Act" in ICANN's Bylaws. These were all summarily rejected. ICANN does not give a damn about the fundamental rights of citizens or Internet users. It does not want to operate in. the sunshine. And it does not want information about what it's doing to be made available even to its own directors, let alone to the public. Give me one good reason why such an organization should get even a millisecond more of your support -- or anyone's.
The law gives directors an "absolute right" because directors exist to be INDEPENDENT OF and SUPERIOR TO the management. Each and every director has a separate duty to the company; each one carries it out in their own. way. The Board cannot prevent any board member from merely inquiring into the state of the company. The Board cannot condition any board member's inquiry on agreement to a set of arbitrary terms. Nor can the management. This is not only a good idea -- it's the law.
ICANN is going down, one way or another. Either it will go down like East Germany, with a peaceful transition to governance responsive to the public will, or it will go down like Japan, with big bombs dropped on it. ICANN has lost all semblance of credibility and merely seeks to entrench its unaccountable power.
I have absolutely no idea what you are doing leading that megalomaniac, unaccountable, unresponsive, anti-expression, anti-public-interest organization. Did they take your kids hostage? Did you sell your soul for a mess of pottage? What hold do they have over you?
I used to think much better of you than this, Vint. You can see that even now I'm grasping at straws rather than believe that YOU are one of the megalomaniacs. But the evidence continues to pile up, and I'm afraid it's true. I don't want to be the friend of such a person. I'll see you from the other side of the courtroom. Bye.