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November 29, 2004
Time for Global Online Elections?
From Bret Fausett. Gee, ya think maybe ICANN will listen? Hell no.
Is it time to bring back the election of At-Large Directors? I think so. I've been reading the ICANN Strategic Plan. It's a nice document. These are all fine goals. But when you step back from it and think about the totality of what ICANN is trying to do, you realize that ICANN hasn't made any hard choices about priorities. The new budget allows it to fund everything. So let's get back to the At Large. Remember, one of the reasons we abandoned the concept of global, online elections was because it wasn't "affordable" (see 'Whereas' Clause #14). The new ICANN, however, can afford it. So when can we start? [Lextext]
Posted by mikki at 03:14 PM | Comments (0)
November 20, 2004
Further follow-up on ICANN's so-called Strategic Plan
By Karl Auerbach
I have had time to dig deeper into ICANN's so-called Strategic Plan. (See First thoughts on ICANN's so-called "Plan" and Vodoo Economics a la ICANN)
Like ICANN's former CRADA Report this "Strategic Plan" is buzzword-full but content-empty.
If we look into section 1 we find the following:
Section 1a.i: We see that ICANN is doing nothing more than planning to adopt better paper-pushing procedures to better serve the IETF when the IETF needs a number allocated.
Section 1a.ii: It is good that ICANN is thinking about cooperating in the construction of a DNS test bed. Some of us have been doing this kind of testing for years on our own dime and have been suggesting to ICANN that this would be a good thing to have. It is only this week that on the NANOG mailing list there has been a discussion of measurements being made privately about the question of routing jitter with regard to anycast roots. Unfortunately ICANN intends merely to "cooperate" - ICANN is not actually stating an intention to do anything more. ICANN is not committing to provide staffing, space, or funding for this. As usual, ICANN is making a promise to do nothing.
Also in Section 1a.ii we see that ICANN is planning on moving the L root server - again. The first move was described in the CRADA report nearly two years ago and, from my conversations with ICANN, was an expensive move that was fully intended to resolve all the issues that are apparently going to be re-solved. The term "Brownian motion" - motion for motion's sake - seems appropriate.
In Section 1a.iii ICANN promises to do more reporting. Given that ICANN has virtually no existing history of doing reporting - Where, for example, is the report on this summer's outage of .org? - any reporting would be an improvement over the status quo. However, the reporting that is enumerated by this section is nothing more than reports about business related activities rather than the kind of operational information that we need to evaluate how well the internet DNS and IP address systems allocation systems are running and how well ICANN is protecting us against technical instability in those systems.
In section 1a.iv ICANN promises to work harder to maintain the root zone file. That's nice. That file has a rate of change on the order of one item changed per day, and that is mainly changes in the NS records for ccTLD name servers. Verisign has been doing this job for years with only a few (and now quite ancient) problems - ICANN is making a big deal about an issue that has already been solved.
Section 1a.v contains a bold bit of claim jumping. In that section ICANN asserts that the L root server was "entrusted to ICANN". That is not true. The internet community has never "entrusted ICANN" with the operation of the L root server. The truth is that the L root server was entrusted to IANA, not to ICANN. ICANN operates the L root server only through ICANN's undertaking of the IANA function under a purchase order from the US National Atmospheric and Oceanic Administration. Should ICANN relinquish or lose the IANA function (for example if the IETF transfers that function as part of the IETF's presently ongoing re-organization, then ICANN would have to say "bye bye" to the L root server.
Section 1a.v makes no service level commitments - so just like every other root server operator, ICANN (channeling for IANA) is unwilling to make any concrete service level promises to the internet community. The most that ICANN-as-IANA promises is to build what amounts to a routinely hardened facility and to chat it up with people in ICANN sponsored committees. ICANN needs to give enforceable, specific, and verifiable promises about server availability, responsively, and accuracy. In addition, ICANN/IANA needs to demonstrate a viable, and practiced, suite of disaster contingency plans and demonstrate that it has the human and fiscal resources to draw upon should the need arise.
Section 1b, beginning on page 32, is similarly full of sound and fury that, in the end, signifies nothing.
Section 1b.i is a laugh. ICANN has from the beginning promised to do these things yet it has never done so except twice. The first was with regard to internationalized domain names. The second was in response to Versign's "Sitefinder". In every other instance, ICANN has passively watched as other actors make decisions. For example, ICANN allowed the removal of IPv4 information from the root zone, an action that weakens the resilience of DNS during times of stress, without as much as a chirp of concern or even the ability to articulate reasons for its non-concern.
Section 1b.ii is simply a claim to a more expansive role for ICANN. We have plenty of groups already working on internet security. Even if ICANN could be a contender in this area it would be simply one more Johhny Come Lately. But ICANN has demonstrated an amazing incompetence in this area. For example ICANN has long known that data escrow would help DNS registrars recover from disasters. Yet ICANN has never bothered to require that registrars engage in good information protection practices. Given ICANN's general technical incapacities it would not be wise to allow ICANN to expand into yet another realm. In addition, one has to ask where is the community concensus that drove ICANN to put this idea into its "Strategic Plan"?
Section 1b.iii is a subtle misrepresentation - ICANN counts even vacuous "understandings" to be counted as firm "agreements". If one actually examines ICANN's existing or proposed "understandings" with root server operators and address registries one sees that they are documents that contain no binding obligations on either side. These understandings are more akin to papers describing a divorce than ones describing a partnership. The community of internet users is looking to ICANN for protection against network instability; yet ICANN has, through these understandings, abandoned any role of oversight.
Section 1b.iii also overstates the rate in which even these empty understandings are being entered into. One would think from the language of ICANN's plan that ccTLDs are anxiously queuing up in long lines to sign ICANN's "pay and obey" ccTLD agreements. In truth they are not - the rate of ccTLD agreements has been very slow and there is no sign that ICANN has done more than sign up the easy ccTLD pickings. Not even ICANN's home country, and the country of its founding governmental agency, has bothered to sign ICANN's ccTLD agreement.
As for the Strategic Plan's section 2 - "Competition and Choice" - all I can say is this: Why should ICANN even be engaged in what amounts to legislative activities that regulate business practices, determine property rights, impose judicial mechanisms, and select who among competitors can enter a marketplace?
There are two kinds of words - there are words that simply consume ink and occupy space. And there are words that communicate concrete ideas, intentions, and promises. With regard to ICANN's principal role as protector of internet stability ICANN has filled its so-called "Strategic Plan" with the first kind of words. There is nothing in this plan that says anything that goes beyond vague promises and platitudes. And to make it more unappetizing, the words that are used are the same tired words and empty phrases that ICANN has been pawning off ever since its inception.
There is one thing that can be said on a positive note: ICANN certainly put a lot of work into creating a pretty document.
[CaveBear Blog]Posted by mikki at 08:06 AM | Comments (0)
More good McCain work - From Larry Lessig
Senator McCain has become an important force for good in the land of IP extremism. I reported a hold he had placed on H.R. 4077 because of valid concerns about whether the freedoms it granted (to enable parents to filter "smut" from films) would be read to deny fair use in other cases.
The same careful eye has now caught a very elegant trap buried within the Intellectual Property Protection Act of 2004.
That bill adds some "Anti-Counterfeiting Provisions" to regulate counterfeit or illicit "labels." Most thought its target was physical labels. But a careful reading revealed a real ambiguity in the statute, suggesting (as the MPAA believed) it regulated both tangible and intangible labels.
Why is that a problem? Well if the act makes it an offence to distribute unauthorized copies of labels, then there's a very simple way for content owners to hack around fair use: embed a watermark into the content, and then any clip, even if fair use, would also constitute an unauthorized copy of a label. Thus, DMCA-like, what copyright law gives, this labeling law would take away.
Senator McCain is thus floating an amendment, to limit the regulation of "illicit labels" to physical labels only. And he has proposed a savings clause, which states:
Savings Clause.--Nothing in Section 2318 of title 18, United States Code, as amended by this title, shall be construed to restrict defenses or limitations on rights under title 17, United States Code, for a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, or a work of visual art, that a genuine certificate, licensing document, registration card, or similar labeling component is (1) affixed to, enclosing, or accompanying, or (2) designed to be affixed to, enclose, or accompany.
Very nice work by a very careful Senator. The Justice Department had expressed similar concerns about an earlier version in March. But the Senator has now given those concerns real life.
[Lessig Blog]Posted by mikki at 07:53 AM | Comments (0)
November 17, 2004
First thoughts on ICANN's so-called "Plan"
ICANN at long last finally issued its so-called "Strategic Plan".
It's not a very good plan, at least not when viewed from the perspective of the users of the internet or from the perspective of a business that uses DNS or wants to enter the DNS business.
ICANN's plan does nothing to protect the technical stability of the net. ICANN is supposed to be our fire department to make sure that the net doesn't burn down. But ICANN seems rather more interested in trying to be the king of some other hill leaving the community of internet users unprotected and the internet vulnerable.
Below is the initial comment on this plan that I sent to ICANN's "comment" address:
To: strategic-plan-comments@icann.org
There is nothing in this plan that deals with ICANN's primary mision: the technical stability of the internet's domain name and IP addressing systems.
To be more specific, there is nothing in this plan that indicates that ICANN will have any role or duty whatsoever regarding the ability of the upper layers of the domain name system (DNS) to operate reliabily, efficiently, promptly, and accurately.
There is nothing in this plan that deals with the proper preparation of the root zone file and its dissemination to root servers.
There is nothing in this plan that deals with responsible operation of the root servers in normal times or in times of stress.
There is nothing in this plan that deals with sensible and balanced allocation of IP addresses.
Instead this plan is completely about business and economic regulation and, by implication, about the prohibition of innovation that is not in accord with ICANN's business and economic rules.
That is not only *not* a narrow mission but it is also a completely inappropriate mission for ICANN. The mission that ICANN describes for itself is that of a national legislature or heavy regulatory agency.
The community of internet users require from ICANN a guarantee that the internet's core infrastructures including the upper tiers of DNS and IP address allocation operate reliably.
The internet community does not require a body that imposes economic, business, and social policy on the internet.
Yet it is that former requirement that this plan ignores and it is that latter non-requirement that this plan proposes.
--karl--
Karl Auerbach
Santa Cruz, California, USA
Former elected ICANN Director for North America
Posted by mikki at 11:53 AM | Comments (0)
EFF Continues Push for Access to Secret Court Order
Government Claims Need for Secrecy, Rebuffs Call for Open Access
San Antonio, TX - Today the Electronic Frontier Foundation (EFF) filed a reply brief in a federal court in Texas supporting its motion to unseal a secret court order. That order had led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists.
EFF filed its reply after the United States Attorney's Office in San Antonio, Texas, filed an opposition brief urging the federal court to refuse EFF's request to unseal. The opposition brief argued that secrecy was required to protect "an ongoing criminal terrorist investigation" and that the confidentiality provisions of a Mutual Legal Assistance Treaty (MLAT) trumped the rights of Indymedia in this case.
This marks the first time that the federal government has formally admitted to the secret order's existence. In its reply brief, EFF reminded the government that treaties are limited by the Bill of Rights, including the First Amendment right of access to court proceedings.
On October 7, the federal government secretly seized Indymedia's servers from San Antonio-based Rackspace Managed Hosting. Issued at the request of a foreign government, the seizure order resulted in more than 20 IMC websites and 10 streaming radio feeds being taken offline. Neither Rackspace nor the government has formally identified the foreign country that initiated the request, but language quoted in the government's refusal of EFF's first request matches a US treaty with Italy. Morena Plazzi, a deputy public prosecutor in Bologna, admitted that she requested server logs from Indymedia, but denied requesting a seizure.
"There are serious questions about whether the government or Rackspace overreached in responding to Italy's request," said Kurt Opsahl, EFF Staff Attorney. "The public needs to see the order so we can understand what went wrong and take steps to prevent this unconstitutional silencing of protected speech from happening again."
"The government's brief tacitly admits Italy issued the order, and the Italian government admits it sought information from Indymedia's servers," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "By keeping the order secret, the government appears to be trying to hide serious procedural errors that led to the seizure, rather than legitimately protecting the secrecy of a 'terrorism' investigation."
Contacts:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Posted by mikki at 08:14 AM | Comments (0)
November 16, 2004
Senate May Ram Copyright Bill
Yet another encroachment of Hollywood into our homes in an attempt to dictate what we do with materials we PURCHASE from them. It's bad enough that they block our ability to forward through commercials on DVDs, but now they want to make it ILLEGAL to fast forward through them with your Tivo or ReplayTV. Absolutely pathetic. It's about time consumers stood up and said "enough is enough."
As early as this week, the Senate may try to quickly pass a bill that would radically change copyright law in favor of Hollywood and the music industry. One provision: Skipping commercials would be illegal. Michael Grebb reports from Washington. [Wired News]
Posted by mikki at 09:36 AM | Comments (0)
November 14, 2004
ICANN, VeriSign, and the Swamp
ICANN has initiated arbitration (before the ICC's International Court of Arbitration) against VeriSign under the .net Registry Agreement, seeking declaratory judgments that many things VeriSign has done or attempted to do over the years (Sitefinder, ConsoliDate, IDN, WLS, and stemming the abusive actions of shell registrars when they destructively query the registry for secondary market purposes) violate that agreement. [CircleID]
Posted by mikki at 02:24 PM | Comments (0)
November 12, 2004
EFF Urges FCC Not to Mandate Surveillance Regime on Internet
Expanded Powers for Law Enforcement Are Dangerously Vague, Invasive
Earlier this week, the Electronic Frontier Foundation (EFF) filed comments with the Federal Communications Commission (FCC) objecting to the agency's plan to expand the reach of a law that forces communications service providers to build surveillance backdoors into their networks.
The Communications Assistance to Law Enforcement Act (CALEA), passed in 1994, forced telephone companies to redesign their network architectures to make wiretapping easier. It expressly did not regulate data traveling over the Internet. But earlier this year, law enforcement agencies petitioned the FCC to expand CALEA's reach to cover broadband providers so that it would be easier for law enforcement to tap Internet "phone calls" via Voice over Internet Protocol (VoIP) applications such as Vonage, as well as online "conversations" using various kinds of instant messaging (IM) programs like AOL Instant Messenger (AIM). The FCC responded with a "notice of proposed rulemaking" (NPRM), which proposes to introduce surveillance technology mandates to broadband Internet access and "managed" VoIP.
In its comments, EFF argues that this transformation in CALEA goes against the letter and the spirit of the law as it was originally written, which expressly ruled out information services like broadband.
"The NPRM relegates Congress' exclusion of information services to so much spilt ink," read the comments. Moreover, EFF argues, the rationale that law enforcement uses to justify its request -- that broadband has "significantly replaced" the telephone network -- is a misrepresentation that opens the door for CALEA to cover just about anything. "Any service that arguably replaces any portion of the prior telephony regime must look down the barrel of CALEA compliance."
In addition, the technological changes required by an expanded CALEA would undermine Internet security and subject new technologies to government review before they can be adopted for use with current Internet devices.
"Law enforcement already has the legal and technological means to access communications on the Internet," said EFF Staff Attorney Kurt Opsahl. "Expanding CALEA to cover broadband communication is not only unnecessary, it will retard innovation while depriving people of their privacy and security on the Internet."
Reply comments are due December 7.
Contact:
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Posted by mikki at 09:58 PM | Comments (0)
November 10, 2004
Domain Hijacking Got Easier or Did It?
Slashdot recently ran a story about the upcoming changes to the ICANN rules governing domain transfers between registrars. A blog entry at Netcraft referenced by the story stated that: "...domain transfer requests will be automatically approved in five days unless they are explicitly denied by the account owner. This is a change from current procedure, in which a domain's ownership and nameservers remain unchanged if there is no response to a transfer request. This could mean trouble... [CircleID]
Posted by mikki at 09:26 PM | Comments (0)
November 09, 2004
Domain Name Hijacking Affects Local Illinois Campaign in Will County
We've previously noted here the challenge of dealing with domain name disputes based on personal names, particularly in the political arena. Now that the campaigns are over and all are taking a deep breath, we can reflect back on one of the domain name disputes arising in the political campaign this year for the office of State's Attorney in Will County Illinois. [CircleID]
Posted by mikki at 09:22 PM | Comments (0)
Trademark Law Gone Bad
Sometimes it takes a non-lawyer to show us just how far overboard the law has gone. In this case, it's trademark law and Cory's wonderful description of how TM lost its way.
Spurred by James Surowiecki's Wired piece on the decline of brand power, Cory looks back at how far we've come from the days when "consumer confusion" was the law's paramount concern.
Says Cory: This is a timely piece because the rhetoric of branding has been used to make unprecedented incursions against privacy, competition and speech.
It used to be that trademarks were intended to protect "consumers" (that's us) from being tricked into buying goods under false pretenses. If it said "Coca-Cola" on the can, there had better be Coke inside, and not Pepsi or Crazy-Bob's-Discount-House-of-Soda brand. When a competitor of Coke's shipped a bottle of stuff that was misleadingly packaged or labelled, Coke's authority to sue its competition derived from its need to protect us, not its bottom line. It didn't get to sue because it owned Coca-Cola, but because it was acting as a proxy for its customers, who were being decieved by con-artists who mislabelled their goods.
...
But as time went by, trademarks stopped being about us and started being the embodiment of brands (which, as Surowiecki points out, are on the wane and were probably never as important as we thought to begin with).
This meant that trademarks weren't just things that helped the public know what they were buying -- they are a kind of pseudo-property. Pseudo-property that could be defended on the basis that it "belongs" to a company, who need to be protected from having the value of their marks "diluted" or "tarnished."
Read it all, it's Chilling.
[Wendy: The Blog]Posted by mikki at 11:11 AM | Comments (0)