Glenn B. Manishin*/
[From CPSR Spring Newsletter,
is a battle for the soul of the Internet. . . . The current controversy over
the Internets Domain Name System (DNS) raises important questions about
how the Internet, as a decentralized, global medium, should be administered
is a battle for the soul of the Internet. It is a contest among corporate giants
for control of one of the most lucrative aspects of e-commerce on the Net. It
is a push by corporate trademark holders to gain new rights in cyberspace. It
is a struggle between Washington and the rest of the world for governance of
the Internet in the 21st century. It is a tawdry illustration of over-sized
egos in the Net community run amuck. The current controversy over domain names
-- how the Internets Domain Name Service (DNS) should be restructured
-- is all of these things.
matter is simple enough. The National Science Foundation (NSF), one of the charter
members of a trio of US government agencies that developed the Internet and
subsidized its initial growth, has a "cooperative agreement" with
a private company, Network Solutions, Inc. (NSI), for registration of Internet
names in the ".com," ".net" and ".org" domains.
Addresses in these cyberspace resources, known as generic Top-Level Domains
(gTLDs), are currently assigned only by NSI. But the NSF-NSI agreement expires
in September 1998, and a number of players -- from commercial competitors to
a new, quasi-government international organization -- are all positioning to
remove NSIs "monopoly" over domain name registration and introduce
competition into the DNS.
has spawned a maelstrom of issues and political controversy, in which CPSR has
been closely involved. In August, the Commerce Department requested public comment
on DNS policy, including whether, and if so how, to introduce competition to
the gTLD registration process and whether new gTLDs -- for instance, ".web"
-- can or should be permitted on the Internet. At the same time, the Geneva-based
Policy Oversight Committee (POC), which has developed its own plan for DNS reform,
is proceeding to sign up new domain name registrars around the world under the
umbrella of the International Telecommunications Union (ITU), the World Trade
Organization (WTO) and a self-proclaimed Council of Registries (CORE). And at
the end of January 1998, the White House -- through policy advisor Ira Magaziner,
architect of the administrations Summer 1997 plan for a "non-governmental"
approach to e-commerce on the Net -- released a report rejecting the CORE initiative
and recommending formation of a new, independent Internet self-governance organization
to take over some of the key DNS functions that are now centralized governmentally
in places such as the Internet Assigned Numbers Authority (IANA).
the heart of the DNS issue is one that is fundamental to CPSRs mission
and, not coincidentally, part of the CPSRs "One Planet. One Net"
initiative, namely Internet governance. As CPSR told the Commerce Department
in its comments:
The current controversy over
the Internets Domain Name System (DNS) raises important questions
about how the Internet, as a decentralized, global medium, should be administered
and governed. . . . The DNS reform process should be slowed in order to
permit the achievement of a consensus approach. . . . No rush to reform
is necessary. The US government should encourage open, consensus-based Internet
self-governance, intervening only to assure public debate and to prevent
any single segment of the Internet community from asserting
its special interests above those of all Internet users.
envisioned by the CORE, the DNS system would be run with extensive new international
bureaucracies, organizations that operate in a "top-down" manner,
not the "bottoms-up" tradition of the Internet. Their plan for a new
DNS, known as the "gTLD Memorandum of Understanding," (gTLD-MoU) was
launched on the Internet in late 1996 without any significant consumer or Internet
user input, supported mainly by international corporate conglomerates, the leadership
of the Internet Society and (initially at least) NSI. Along with their trademark
associations, these business groups have been frustrated with the cumbersome,
costly need to sue for trademark infringement in every country where an Internet
"pirate" registers a trademark (i.e., mcdonalds.com or mcdonalds.uk)
as a domain name.
gTLD MO-MoU solution is inconsistent with traditional notions of Internet self-governance
and with the necessary balance between the interests of the Internet community
and large cyberspace-savvy corporations. Although it was presented to the world
initially as a way to jump-start competition in DNS, the CORE (and its predecessor,
the so-called Internet Ad Hoc Committee or IAHC) is less about developing new
domain registries than it is about establishing -- for the first time -- international
rules for DNS registrar qualification and for trademark dispute "resolution."
By centralizing all domain name trademark disputes in the WTO and by requiring
all DNS registrars to follow the same trademark policies, CORE is imposing a
new quasi-legal international structure on the Internet and Internet policy
the same time, NSI has proposed an alternative plan (later withdrawn), under
which it would keep the ".com," ".net" and ".org"
domains and compete with new registrars, who would be given authority over new
gTLDs. This would preserve NSIs existing monopoly over key DNS resources
and establish a precedent for private, de facto ownership of parts of the Internet
infrastructure. NSI terms euphemistically this approach "branded"
gTLDs. It is revolutionary and frightening. Although much of the Internets
physical facilities (backbone networks, peering facilities, and the like) are
privately held, until now there has been no private control of cyberspace resources
themselves -- of which gTLDs are a prime example.
are developments that many Internet activists view as alarming, and a large
part of what motivated CPSR to intervene in the DNS debate in Summer 1997. Led
by Harry Hochheiser (Board Member at Large), Andy Oram (Moderator of the Cyber-Rights
ListServe), Craig Johnson (CPSR member) and this author (CPSR counsel), CPSR
has proposed several bedrock principles for DNS administration. All of these
flow from the same preference for open, inclusive Internet administration that
forms part of the "One Planet, One Net" initiative. (The full comments
are available at the CPSR Web site.) CPSR
proposed that the twin aims of competitive Internet services and non-governmental
Internet administration can and should be applied to the DNS system:
Internet domain name registration process should be opened to competition
for all existing and newly created generic top-level domains (gTLDs).
should be administered by competing registrars, with restrictions imposed
only based on any technical limitations.
(NSI or others) should enjoy a proprietary interest or commercial "ownership"
of any TLD, including ".com ".
registration should be separated from trademark issues. Registrars should
not be involved in trademark dispute resolution, but rather should refer
all trademark issues to appropriate national and international judicial
Internets "root" server administration responsibilities should be
coordinated and centralized in order to assure reliability and scaleability
DNS reform process should be handled in an open, balanced and non-governmental
manner, with full participation by consumers and small commercial entities,
in addition to trademark owners.
quasi-governmental organizations (ITU, WIPO, OECD, etc.) should have no
formal role in Internet governance or domain name registration. The extensive
new bureaucracy for domain name management and oversight proposed by IAHC,
including a Swiss-based Council of Registrars (CORE) and a higher level
interim Policy Oversight Committee (iPOC), are unnecessary and counterproductive.
governments (Commerce, DOD, etc.) have no necessary role in DNS administration
except for ISO 3166 TLDs (e.g., ".us," ".de," etc.) and maintaining fair,
open and competitively neutral Internet self-governance organizations.
|| The IAHC
process was closed, rushed and biased towards trademark owners. With encouragement
from NTIA, ISOC should be required to open up the process to permit full
debate by the global Internet community on DNS practices. The absence
of any "crisis" in domain name resources allows for thoughtful and deliberate
consideration of DNS issues.
implementation of the IAHC approach will continue to splinter the Internet
community and would unnecessarily involve international quasi-governmental
organizations in Internet governance. The DNS reform process should be
slowed in order to permit achievement of a consensus approach that all
interest groups (including Internet users/consumers) can support. No "rush
to reform" is necessary.
|The US government
should not endorse, and should actively oppose, intervention by ITU and
WIPO in the DNS administration process. The government should not attempt
to unilaterally dictate any specific domain name registration process
for gTLDs, which are global Internet resources.
CPSR plan thus represents a combination of what is good in the CORE and NSI
approaches, modified to better reflect Internet community interests and to
maintain continuity in DNS administration. One of the important failures of
the CORE process is that it is seeking to open up a large number of new gTLDs
without concentrating on how each of them would interact, so that e-mail and
Web sites would remain universally available, regardless of a users
location or Internet provider. Therefore, CPSR -- virtually alone among the
major commenting organizations -- urged that the "root" servers,
which are the highest-order Internet machines that translate domain names
into IP addresses, be maintained in a centralized, coordinated fashion. Under
this approach, private registrars would compete for domain name registrations
using "shared" domains -- including ".com" -- but the
overall stability of the Internet would be protected.
is almost exactly the approach that Ira Magaziner has recently recommended from
the White House. The Commerce Departments long-awaited DNS report proposes
implementation of five new gTLDs and the formation of a new, independent Internet
organization to take over both the root server and IANA (IP number assignment)
functions. Under this plan, ".com" would be shared and the US government
would act as a "steward" to shepherd the Internet from its remaining
links to the US into a truly international, self-governing "network of
there are risks. First, some in Congress, which held hearings on DNS issues
in the Fall 1997, think that because NSF and the US Defense Department subsidized
the initial development of the Internet, control should not be ceded to anyone
else, either existing international organizations or new grass-roots entities.
This is sort of like Ronald Reagan telling George Bush in the 1980 New Hampshire
debates: "I paid for this microphone, Mr. Bush!" Second, IANA, run
by John Postel at the University of Southern California, has endorsed the CORE
plan, and may initiate a confrontation with the White House if it proceeds to
"load" the CORE gTLDs into the root servers. (It is actually even
more complicated than that, since NSI physically controls the roots servers,
and NSF has said it may order NSI not to listen to IANA any more.)
biggest risk, however, is that the Internet community will lose out in this
process. Although CPSRs activism has helped (along with 30,000 e-mails
to Commerce), there is still the possibility that CORE will continue to proceed
ahead. With inertia on its side, and with the support of a number of zealot
Internet engineers, CORE is devoted to the goal of breaking NSIs monopoly
as soon as possible, and possibly by whatever means necessary. That is why CPSR
has fought hard to slow the process down, urging Magaziner to avoid concluding
that there is a "crisis in DNS administration that require
expedited implementation of any system for DNS reform."
that DNS is the last remaining matter on which the US government remains directly
involved in Internet administration, the deliberate, contemplative approach
of Magaziner and the Commerce Department is probably a good thing. CPSR argued
last August that the US government "can act as a catalyst in assisting
the creation of the new self-governance organizations (open and balanced consortia
of Internet professionals, providers and users) that will be necessary to complete
the transition to a fully non-governmentally administered Internet." If
all goes as the Administration hopes, this appears to be exactly what will happen.
Internet users and the entire Internet community will be better off as a result.
As Harry Hochheiser has said, "DNS has a profound effect upon the way that
end users access the Internet. Changes to DNS should be made on the basis of
what's best for all constituencies involved, instead of simply focusing on the
narrowly-defined needs of trademark owners or those who hope to build domain-registration
the prognosis is good, but stay tuned for more of the DNS wars. Whether the
resolution is one that moves the Internet in the direction of "One Planet,
One Net" is up to all of us.
the author -- Glenn Manishin <email@example.com>
is a Washington, D.C. lawyer who serves as CPSRs pro bono legal counsel
on telecommunications and technology policy issues.