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## author : declan@well.com
## date : 22.07.99
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And Jamie Love's testimony:
http://www.cptech.org/ecom/icann-test.txt
********
Date: Thu, 22 Jul 1999 04:59:47 -0400
To: declan@well.com
From: Jonathan Weinberg <weinberg@mail.msen.com>
Testimony of
Jon Weinberg
Professor of Law, Wayne State University
Detroit, MI 48202
(734) 577-3942
before the
U.S. House of Representatives
Commerce Committee
Subcommittee on Oversight and Investigations
"Domain Name System Privatization: Is ICANN Out of Control?"
July 22, 1999
Prepared Testimony
Mr. Chairman, my name is Jon Weinberg and I'm a law
professor at Wayne State University. In 1997-98, I was
a professor in residence at the Federal Communications
Commission and I worked on some of the issues that are
currently before the Subcommittee. I am not appearing
here, though, on behalf of either Wayne State
University or the U.S. government; rather, I am
speaking only for myself. In my view, the largely
self-inflicted wounds that ICANN has suffered to date
need not be fatal. ICANN must move quickly to
implement mechanisms for choosing new Board members who
will be drawn from, and who can represent, the Internet
community. Second, and relatedly, it must learn to act
like a part of the Internet community. Finally, it
must find an adequate way of defining, and limiting,
its own policy mandate. If it can do all of these
things, it will be able to fulfill the role that the
White Paper laid out for it.
Background -- IP numbers and domain names
Every computer connected to the Internet must have a
unique Internet Protocol (IP) address in order to
receive information, just as every telephone on the
public switched network must have a unique telephone
number. A stable and reliable IP addressing system
is crucial to the proper functioning of the Internet.
IP addresses (such as 149.59.6.22), however, are opaque
and hard to remember. It would not be practical for a
user to have to remember, and type in, a different IP
address for every Web site he sought to visit or
electronic mail message he wished to send. Accordingly,
under the current Internet architecture, each IP
address maps to a more or less easy-to-remember domain
name such as www.house.gov or www.law.wayne.edu. The
domain name system (DNS) makes it easier for ordinary
people to use the Internet.
The domain name system is hierarchical. That is, the
domain name space is divided into top-level domains, or
TLDs; each TLD is divided into second-level domains, or
SLDs; and so on. The currently-available TLDs include
.com, .net, .org, .edu, all administered by Network
Solutions, Inc. (NSI), and the so-called "country code"
top-level domains such as .us, .uk and ..fr. At the
outset, it was thought that .com would used by
commercial entities, .net by entities involved with the
Internet networking infrastructure, .org by nonprofit
organizations, and .edu by educational institutions.
NSI, though, does not enforce any such restrictions on
registrants in ..com, .org and .net. Indeed, NSI urges
businesses to register their preferred second-level
domain names in all three of those top-level domains.
How we got where we are
In the early days of computer networking, there was no
need for a hierarchical domain name system. Until
1984, after all, there were fewer than 1000 "host"
computers connected to the Internet. That number,
however, quickly grew. It soon became clear that the
Internet needed a new addressing structure. Scientists
including Jon Postel and Paul Mockapetris of the
University of Southern California's Information
Sciences Institute (ISI) developed the current domain
name system, and the first domains were registered in
1985. ISI assumed responsibility for oversight of the
domain name system, including oversight of the root
servers, which sit at the apex of the domain-name
system and effectively determine which top-level
domains will be recognized by the system. These and
other coordinating functions, performed by Dr. Postel
and his staff at ISI, came to be known as the Internet
Assigned Numbers Authority, or IANA. The Defense
Department, which had bankrolled almost all of the
early development of the Internet, entered into a
series of contracts with ISI under which the U.S.
government paid for the IANA functions.
The Defense Department in 1985 assigned SRI
International, a nonprofit Silicon Valley research
institute, the job of registering second-level domains
in the generic (non-country code) top-level domains.
Later on, the National Science Foundation (NSF) assumed
the lead from the Defense Department in funding basic
Internet infrastructure. In 1992, NSF established a
new structure known as the InterNIC, or Internet
Network Information Center. It entered into cooperative
agreements with AT&T to provide Internet directory and
database services; General Atomics to provide certain
Internet information services; and NSI to perform the
registration services that had been handled by SRI.
NSI agreed to register second-level domains in the
generic TLDs and to maintain those top-level domains'
master databases. Those services were free to users;
they were underwritten by the National Science
Foundation. NSI had physical control of the "A" root
server, from which all of the other root servers get
their information, but it operated that root server on
instructions from IANA.
By 1995, the Net had come of age. It had been more
than 25 years since the initial establishment of the
Internet's predecessor, the Arpanet. Business were
beginning to use the Internet for commercial purposes.
The U.S. House and Senate were online. More than 100
countries were now connected to the Internet backbone,
and operated their own top-level domains. The World
Wide Web, which had become the dominant Internet
application, was now thus truly world-wide. NSI
negotiated with the National Science Foundation an
amendment to the cooperative agreement under which NSI
would begin charging a $50 annual fee to domain- name
registrants.
The NSI fee was unpopular, and crystallized growing
unhappiness with the structure of the domain name
system. Registrants wondered why, in seeking to
registering names in the generic TLDs, they were stuck
with the service provided by, and the fees charged by,
the NSI monopoly. NSI also generated considerable
animosity with its domain name dispute policies, under
which it asserted the right to (and did) suspend any
domain name upon complaint from a trademark owner,
without regard to whether the trademark owner had a
superior legal claim to the domain name. Finally,
there was growing consensus in the technical community
that the architecture would support many more top-level
domains than had so far been authorized.
Accordingly, Jon Postel floated a suggestion that IANA
authorize up to 150 new generic top-level domains, to
be operated by new registries. As the proposal went
through successive iterations, IANA and the Internet
Society formed an elaborate, internationally
representative "Internet Ad Hoc Committee" (IAHC) to
consider the question of adding new top-level domains,
with representation from, among others, the
International Telecommunications Union, the
International Trademark Association and the World
Intellectual Property Organization. The trademark
lawyers urged that the number of new domains be cut
considerably; the group ultimately generated a proposal
for the addition of just seven new top-level domains.
Would-be domain-name holders, under the IAHC plan,
could go to any of a large number of competing
"registrars" to register names in those new domains;
the actual master databases for all of the new domains
would be controlled by a single nonprofit corporation
known as CORE, to be run by the registrars. When Jon
Postel requested that NSI insert the new CORE top-level
domains into the "A" root server, though, NSI declined
to do so absent authorization from the U.S. government.
The U.S. government, in turn, instructed NSI to wait;
it was still in the middle of its own analysis of the
domain-name situation.
In 1998, the Commerce Department issued a "Green
Paper," followed by a "White Paper," expressing its
views on Internet identifiers. The White Paper
emphasized that with the changing role of the Internet
in the modern world, IANA's functions needed to be
transferred to an entity, not funded by the U.S.
government, with a more formal and robust management
structure and more formal accountability to the
international Internet community. While Dr. Postel had
the loyalty and respect of a wide consensus of the
community, his informal leadership was no longer enough
"What happens," the question ran, "if Jon Postel gets
hit by a beer truck?" The new entity, the White Paper
continued, should have fair, open, transparent and
pro- competitive decisionmaking processes that
protected it against capture by a narrow group of
stakeholders.
The White Paper made clear that there was an urgent
need for greater competition in domain name
registration. That competition, it explained, should
come in two ways. First, customers should be able to
register domains in any top-level domain, including
those currently operated by NSI, using any of a number
of competing registrars. The U.S. government
contemplated that NSI would continue to control the
"registry," or master database, for .com, .net and
.org, but that it would have to offer equal access to
competing registrars seeking to enter names in that
database. Second, the White Paper continued, IANA's
successor should add new top-level domains to the root
zone, operated by new domain-name registries, so as to
expand the name space and maximize consumer choice.
The actual establishment of ICANN was clouded by
tragedy. Jon Postel had agreed to serve as Chief
Technical Officer of a new corporation, to be known as
the Internet Corporation for Assigned Names and
Numbers, to perform IANA's technical management
functions. The corporation's Board of Directors were
chosen from a group of distinguished personages who had
had little involvement in (and, for the most part,
little knowledge of) the "DNS wars" of the previous few
years. The facts that not all of the Board members had
extensive technical expertise was not considered to be
a problem, since Dr. Postel could provide that
technical background and guidance. On October 16,
1998, though, Postel died at 55 of post-operative
complications from heart surgery. In figurative terms,
he'd been hit by a beer truck. The Department of
Commerce nonetheless, six weeks later, entered into a
memorandum of understanding with ICANN, agreeing to
work together to develop mechanisms and procedures so
that the nascent ICANN could administer Internet
technical identifiers in a transparent and fair manner.
Before the Internet took on its current economic
importance, the substantive questions confronting ICANN
could have been resolved within the Internet
Engineering Task Force, a technical standards body
composed of scientists and engineers interested in
Internet infrastructure, with little attention paid by
the outside world. By the mid-1990s, though, those
questions had too much money riding on them to allow
such mundane resolution. Those with money or prestige
at stake NSI, trademark interests, international
standards organizations and others all brought their
lawyers to lobby in favor of their preferred models.
The high-profile White Paper process, indeed, probably
encouraged any entities with economic stakes that had
not yet "lawyered up" that it was high time they did
so. To an increasing degree, it was lawyers and
lobbyists, rather than technical experts, who were
demanding seats at the Internet architecture table.
Where we are now
In its quest for legitimacy, ICANN has taken several
wrong turns. It started out under a considerable
handicap since its Board members, for the most part,
have little background in Internet technical issues.
They were chosen on the theory that it would be helpful
for the Board members to be new to the DNS debates, so
that they were not tainted by identification with past
controversy. The newness of most of the members to
Internet technical issues, though, greatly complicated
the task of securing the confidence of the Internet
community. The Board members' selection was shrouded in
secrecy, and that secrecy was exacerbated by the
Board's early penchant for closed meetings, so that the
Internet community knew neither who these people were
nor how they were reaching their decisions. ICANN
demonstrated a tin ear when it came to the Internet
traditions of openness and communication. For the most
part, ICANN still communicates to the outside world
through its public relations firm and its lawyers.
Those channels are all very well for a commercial firm,
but they are insufficient to win ICANN acceptance as an
organ and thus a part of the Internet technical
community.
Nor have the structures ICANN created been the most
representative. ICANN has brokered the creation of an
arbitrary structure for its Domain Names Supporting
Organization, which will have a lead role in the
development of DNS policy, under which business and
trademark interests will have a disproportionate role.
ICANN, further, lacks humility, notwithstanding that it
has a great deal to be humble about. I was bemused to
read Esther Dyson's explanation, in her July 19 letter
to NTIA Associate Administrator Becky Burr, that the
public need not worry that ICANN will use its authority
to impose inappropriate requirements on Internet
actors. Since ICANN, Dyson explained, is by its nature
"nothing more than the reflection of community
consensus," by definition it cannot do anything
improper. If this message is sincere, it reflects
previously unimagined depths in ICANN's lack of
understanding of others' concerns.
ICANN has seemed not to understand the importance of
limiting its policy role. The matter of domain-name
dispute resolution provides one example. The White
Paper had urged that the World Intellectual Property
Organization explore recommendations for a uniform
dispute resolution approach for "trademark/domain name
disputes involving cyberpiracy" that is, abusive
registrations of a domain name string identical or
closely similar to another firm's trademark, solely for
the purpose of reselling the domain name to that firm
or one of its competitors. "[I]t should be clear," the
White Paper noted, that any dispute resolution
mechanism put forward by ICANN should be limited to
that category of disputes. WIPO, after extensive
deliberations, issued a report recommending such a
dispute-resolution mechanism, limited to the cases
described in the White Paper. ICANN referred the WIPO
report to its Domain Names Supporting Organization. It
then issued a press release expressing its view that
the mandatory dispute resolution for domain name
registrants imposed through ICANN- sanctioned contracts
should not be limited to abusive registrations, and
indeed should "ultimately cover all commercial dispute
issues linked to Domain Name registrations" (emphasis
mine). This suggests that ICANN fundamentally
misunderstands its role. We do not need a world
Internet government, imposing such policies as seem to
it good. We need a technical coordinator to perform
the limited tasks of expanding the name space,
protecting the stability of the domain name system, and
policing bad actors who threaten competition and
consumer welfare.
At the same time, though, not all of the criticisms of
ICANN are justified. ICANN has been much criticized
for its proposal that it collect a fee to defray its
own costs, from registrars registering domain names in
.com, .net and .org, for each domain name they
register, not to exceed $1 per registration-year.
ICANN recently decided to table this fee for the time
being, and to rethink it in conjunction with the
directly affected entities. This was a wise decision.
The fee was controversial, and ICANN's spending choices
have not been beyond criticism. Nonetheless, the White
Paper contemplated that IANA's successor unlike IANA
itself would be free from government support precisely
because it could be funded by "domain name registries,
regional IP registries, or other entities identified by
the Board." The problem with the ICANN fee was not
that there is something wrong with such a funding
mechanism in principle, but that the Board went ahead
with it without first securing the sort of community
support that would make such a fee sufficiently broadly
acceptable.
ICANN has been criticized on the ground that it is
seeking to impose overbearing requirements on NSI.
Conflict between NSI and ICANN, however, is inevitable.
NSI currently enjoys an unparalleled monopoly in domain
name registration services, and is earning huge profits
from its position. NSI's .com, .org and .net top-level
domains include the overwhelming majority of
domain-name registrations. (NSI has over 5 million
registrations in .com alone. The largest top-level
domain not administered by NSI is the country-code
domain ..de (Germany), with fewer than 400,000
registrations.) ICANN's task, as set out in the Green
and White Papers, is to destroy NSI's monopoly in two
ways: first, by introducing competitive registrars to
.com and the other top-level domains now administered
by NSI, and second, by authorizing new generic
top-level domains to compete with those domains. It
should be unsurprising that NSI opposes ICANN
implacably.
NSI has sought to forestall competition, and to
leverage its effective control over the generic
top-level domain master databases, in a variety of
respects. It has aggressively and unjustifiably
asserted intellectual property control over the
contents of the .com, .net and .org databases, and is
seeking to market the information contained in those
databases through such devices as its upcoming "dot com
directory." It has been recalcitrant in its
relationship with the Department of Commerce, dragging
its feet on registrar competition and imposing barriers
in the way of the testbed registrars. It now professes
that because of "personnel resource limitations," it
will be able to enable new registrars to access its
databases only at the rate of only five per month. It
has arbitrarily and without notice blocked public
access to sources of registration information, and has
insisted on receiving a fee for maintaining the master
database that unreasonably exceeds its costs.
It is plain that somebody needs to ride herd on NSI.
The DNS controversy was sparked in the first instance,
after all, by user concerns over the monopoly franchise
NSI was exercising under its cooperative agreement with
the National Science Foundation. Four years later, NSI
continues to exercise tremendous market power. The
White Paper gave the job of supervising NSI to ICANN
(with backup from the Department of Commerce). In
turn, the White Paper directed that NSI must recognize
"the role of the new corporation [that is, ICANN] to
establish and implement DNS policy and to establish
terms [applicable to NSI among others] under which
registries, registrars and gTLDs are permitted to
operate." NSI's economic interests lie in its acting
to obstruct that process.
Some of ICANN's problems should dissipate as mechanisms
are put in place to elect new Board members. As new
Board members drawn from the Internet community take
their seats, ICANN's task of winning legitimacy should
become easier. Important questions, though, still
remain. The voting mechanism for ICANN's at-large
Board members, to be elected by the global membership,
remains unsettled. Other aspects of ICANN's governance
structure are already skewed. Many observers have
expressed concerns (which I share) that ICANN's Domain
Name Supporting Organization, which has the lead role
in initiating policy concerning the DNS, is structured
in a manner that is arbitrary, haphazard, and
systematically tilted towards trademark and business
interests. These aspects of ICANN's structure deserve
continuing close attention.
Where we go from here
ICANN is seeking to enter into contractual agreements
with all firms seeking to register domain names in
.com, .net, and .org, under which those entities agree
to terms (beginning with financial and business
qualifications) designed to implement DNS policy goals.
Later in the process, it will seek to enter into
similar contracts with all entities seeking to operate
top-level domains as registries. This approach will
allow ICANN to enter into registry contracts requiring
the registries to enter into specified contracts with
their registrars, and the registrars to enter into
specified contracts with domain name holders, and so
on. Indeed, the WIPO report on domain- name dispute
resolution contemplates exactly that: all domain-name
holders, in order to register names in top-level
domains included in the ICANN root, will have to agree
to particular contractual terms related to dispute
resolution. This web of top-down contracts could give
ICANN the power to impose a variety of rules on domain
name holders (and in turn, the Internet population at
large) that have little to do with Internet technical
administration and domain name policy.
Such a result would be disastrous. ICANN must not be a
world Internet government. Its role should not be to
enact good policies, and impose them on the rest of us.
In particular, its role should not be to make the
Internet safe for electronic commerce. That effort,
although much prized by business, would require a wide
range of policy and value judgments that lie far
outside ICANN's limited role. Rather, it should limit
its task to the structure and stability of the domain
name system and the administration of other Internet
identifiers.
Ironically, though, one of ICANN's biggest current
tasks lies outside the boundaries I have just defined.
I have already referred twice to trademark-domain name
dispute resolution: ICANN has announced its intention
to quickly adopt new rules, to be imposed on all domain
name holders, potentially requiring their participation
in dispute-resolution proceedings brought by trademark
owners who feel that the domain names "pirate" their
trademarks. Yet resolution of such trademark-law
disputes between trademark owners and domain name
holders has no technical component. It is not
necessary to administration of Internet identifiers.
It could be handled through ordinary trademark-law
litigation, as it has been to date, without any threat
to the stability of the domain name system. It is
precisely the sort of issue that IANA would not have
dreamed of taking on, and that ICANN should not be
engaged in.
ICANN is involving itself in domain-name dispute
resolution for three reasons. First, as a matter of
pure practical politics, trademark holders have made
clear that they will fight vehemently against the
addition of any new top-level domains, in Congress and
other fora, unless ICANN first implements a trademark
dispute resolution mechanism. Second, NSI already has
a trademark dispute resolution "mechanism" in place
it will suspend any domain name upon complaint from a
trademark holder with the same mark and nearly all
parties agree that that mechanism must be replaced.
Finally, the current ICANN structure gives business and
trademark-owning interests extensive influence, and the
Board members are sympathetic to their concerns. At
least the first two of these reasons may make the
enactment of some sort of trademark dispute resolution
mechanism inevitable at this point. But this should be
the last of ICANN's forays outside of issues relating
to the structure and stability of the domain name
space, and the administration of other Internet
identifiers.
ICANN, in short, has three tasks before it. It must
move quickly to formulate, and to implement, mechanisms
for choosing new Board members who will be drawn from,
and who can represent, the Internet community. Second,
and relatedly, it must learn to act like a part of the
Internet community. Finally, it must find an adequate
way of defining, and limiting, its own mandate. (It
will not suffice for it to declare piously that,
because it is impelled by community consensus, it is
incapable of overstepping its bounds.) If ICANN can do
all of these things, it will be able to fulfill the
role that the White Paper laid out for it.
----------------------------------
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