Domain Names & Internet Governance

It 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 Internet’s Domain Name Service (DNS) should be restructured -- is all of these things.

The 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 NSI’s "monopoly" over domain name registration and introduce competition into the DNS.

This 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 administration’s 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).

But the heart of the DNS issue is one that is fundamental to CPSR’s mission and, not coincidentally, part of the CPSR’s "One Planet. One Net" initiative, namely Internet governance. As CPSR told the Commerce Department in its comments:

As 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.

The 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 questions.

At 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 NSI’s 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 Internet’s 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.

These 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:

1.	The Internet domain name registration process should be opened to competition for all existing and newly created generic top-level domains (gTLDs).
	a.	Shared gTLDs should be administered by competing registrars, with restrictions imposed only based on any technical limitations.
	b.	No registrar (NSI or others) should enjoy a proprietary interest or commercial "ownership" of any TLD, including ".com ".
2.	Domain 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 bodies.
3.	The Internet’s "root" server administration responsibilities should be coordinated and centralized in order to assure reliability and scaleability of Internet.
4.	The 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.
	a.	International 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.
	b.	National 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.
	c.	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.
	d.	Expedited 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.
	e.	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.

The 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 user’s 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.

This is almost exactly the approach that Ira Magaziner has recently recommended from the White House. The Commerce Department’s 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 networks."

But 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.)

The biggest risk, however, is that the Internet community will lose out in this process. Although CPSR’s 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 NSI’s 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."

Given 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 businesses."

So, 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.

^*^/About the author -- Glenn Manishin <glenn@manishin.com> is a Washington, D.C. lawyer who serves as CPSR’s pro bono legal counsel on telecommunications and technology policy issues.