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Signposts in Cyberspace: The Domain Name System and Internet Navigation (2005)

Chapter: 5 The Domain Name System: Institutional Issues

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Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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5
The Domain Name System: Institutional Issues

The in stitutional framework of the Domain Name System (DNS), as described in Chapter 3, comprises a diverse group of organizations carrying out their various responsibilities with a high degree of autonomy. No single institution—not even the Internet Corporation for Assigned Names and Numbers (ICANN) or the U.S. Department of Commerce—has effective authority over all of the participating organizations. Nevertheless, this group of organizations has successfully managed the DNS through two decades of rapid growth of the Internet, and of the most significant applications on the Internet such as the Web and e-mail, which rely on it. However, as the Internet and its applications have grown in importance, so have the attention and the controversy that the DNS and its institutional framework have attracted. That critical scrutiny has raised a number of issues concerning the structure, governance, management, and operations of the organizations that manage the DNS.

Most of those issues are being actively addressed, but the organizations involved face the reality of multiple, often conflicting interests—both public and private—becoming more actively engaged in their activities. That makes achieving consensus decisions—in the tradition of the early Internet community—increasingly difficult and leaves a residue of dissatisfaction with any decision that is taken. Since attention to the institutional framework of the DNS can be expected to continue to increase with the Internet’s growing significance as a critical global communications infrastructure, so too can the critical institutional issues be expected to receive increasing scrutiny and to give rise to increasing controversy.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

This chapter is a guide to the principal institutional issues that have already or can soon be expected to come to the fore. For each institutional issue, the principal alternatives that have been publicly identified are summarized, and the alternatives are compared. Where the committee is in agreement, its conclusions and recommendations are presented. In all cases, the intent is to provide a clear description of the alternatives and the arguments for and against them as background for current and future policy deliberations.

Some of the issues, such as ICANN’s management structure, may appear to be resolved for the time being. In the committee’s view, understanding the conflicting proposals that preceded the present resolution illuminates the pressures that remain in the background and that may, in the future, force the issue once again onto the policy agenda.

The following issues are addressed in this chapter:

  1. Governance of the DNS. How should the DNS be governed? What should be the role of the U.S. government, international organizations, and ICANN?

  2. Management of the DNS. What changes in ICANN, if any, are appropriate?

  3. Oversight and operation of root name servers. Is there a need for greater oversight of the root name server operators? If so, how might it best be conducted?

  4. Regulation of generic top-level domains (gTLDs): number and process. Can and should new gTLDs be added? If so, how many new gTLDs should be added, and how fast? What types should they be, and how should they and their operators be selected?

  5. Oversight of country code top-level domains (ccTLDs). Should anything be done to increase ICANN’s oversight of and authority over the ccTLDs? If so, what form should its increased authority take, and how can it be implemented?

  6. Resolution of conflicts over domain names. Does the Uniform Domain Name Dispute Resolution Process (UDRP) need to be improved? If so, how should it be improved?

  7. Provision and protection of Whois data. What is the appropriate balance among the various interests in Whois data?

In contrast to most of the other chapters in this report, this one deals with issues for which opinion and values play a significant role. Consequently, many of the citations and references are to advocacy documents, not to peer-reviewed scientific or technical papers. These references serve as pointers to places where the proposals being summarized were presented. When there were multiple similar proposals, one or two have been

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

selected as references, either because they appeared to be the most representative or because they were the most readily accessible. The committee’s use of these references should in no way be considered an endorsement of the point of view expressed.

5.1 GOVERNANCE OF THE DOMAIN NAME SYSTEM

Issues: How should the DNS be governed? What should be the role of the U.S. government, international organizations, and ICANN?

As explained in Chapter 3, the U.S. government currently possesses the final authority to make key decisions affecting the DNS. Specifically, it must approve all changes in the root zone file and, thereby, controls the designation of top-level domains (TLDs) and the assignment of responsibility for their operation. In this way, it functions as the steward of the DNS, exercising its authority and making decisions for the larger Internet community.

Through a memorandum of understanding (MoU) signed in November 1998, the U.S. government delegated day-to-day operational authority to ICANN, which makes recommendations to the U.S. Department of Commerce (DOC) for its decisions affecting the DNS. In this capacity, ICANN recommends the addition of new TLDs and redelegations of existing TLDs. (As noted in Chapter 3, ICANN has additional responsibilities for Internet Protocol (IP) addresses and protocols.) ICANN might be thought of as the registry for the root, sponsored by the U.S. government. ICANN nominally has the same responsibilities as other registries: it registers entries into the zone file and sees to the distribution of that zone file to the name server operators. However, as noted in Chapter 3, unlike the TLD registries, ICANN does not directly contract for operation of the root name servers, nor does it have contracts with all the TLDs. In fact, in June 2005 it had agreements with only 10 of the 15 gTLDs and 12 of the 243 ccTLDs. However, because it recommends any new and revised entries into the root zone, because its agreements with the largest gTLDs set the rules for their operations and those of their accredited registrars, and because those rules strongly influence the operations of the other TLDs, ICANN is generally perceived to be the manager of the DNS.

Against this background, the issue of the proper form of DNS governance can be divided into two separate but closely interrelated issues: (1) Where should the stewardship—the final authority for key decisions—of the DNS reside? and (2) How should management authority—the registry function for the root—for the DNS be exercised? Although these roles are distinct at present, one possible answer is that they be combined.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

5.1.1 Relationship to Governance of the Internet

Before addressing the questions of stewardship and management authority for the DNS, it is important to emphasize the distinction between governance of the DNS and governance of the Internet. Clarifying this distinction is necessary because the DOC’s and ICANN’s visible responsibility for a key part of the Internet’s infrastructure and the fact that decisions affecting the DNS have economic, social, and political consequences have tended to focus discussions of Internet governance on the DOC/ICANN and the DNS. However, there are many aspects of the Internet that are or might be subject to governance but that lie outside the DNS and the areas of responsibility of its managers.1 These include, for example, controlling spam; dealing with use of the Internet for illegal purposes; resolving the “digital divide” between developed and developing countries; protecting intellectual property other than domain names; protecting privacy and freedom of expression; and facilitating and regulating e-commerce.2 Furthermore, there are increasingly important aspects of the Internet that are currently subject to little public governance, such as search engines and directories. Thus, DNS governance is a part of, but does not include many aspects of, Internet governance. Since at the time of this writing in December 2004 there have been no practical proposals for broad governance of the Internet, this chapter focuses solely on governance of the DNS. (The institutional issues associated with Internet navigation are discussed separately in Chapter 8.)

Conclusion: Governance of the DNS is part, but not all, of Internet governance. ICANN and the DNS are not the proper vehicles to address most Internet policy issues.

5.1.2 Where Should Stewardship of the DNS Reside?

The U.S. government acquired responsibility for and authority over the DNS root by virtue of its historical initiative and financial investment

1  

The issue of Internet governance, in general, has become the subject of intense scrutiny in preparation for the second phase of the World Summit on the Information Society (WSIS) in November 2005. The ITU held a workshop on Internet governance in February 2004 at which many views on the subject were presented. For an extensive discussion of Internet governance and the place of DNS governance within it, see, for example, Don McLean, “Herding Schrödinger’s Cats: Some Conceptual Tools for Thinking About Internet Governance,” ITU Workshop on Internet Governance, February, 2004, available at <http://www.itu.int/osg/spu/forum/intgov04/contributions.html>. In preparation for the WSIS meeting in 2005, the Working Group on Internet Governance (WGIG) was appointed in November 2004.

2  

The ITU invited selected experts to present papers on Internet governance at a workshop. These papers, which present a variety of personal views on this broad range of issues, are available at <http://www.itu.int/osg/spu/forum/intgov04/contributions.html>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

in supporting creation of the Internet and the DNS, as described in Chapter 2. However, as the Internet has become international in extent, support, and operation, the formal legitimacy of the U.S. government’s continued authority over the root has come under challenge, such as in the context of the World Summit on the Information Society (WSIS).3

Critics, including representatives of the governments of Brazil, South Africa, Russia, and China,4 have argued that the DNS is so central to the reliable and effective operation of the now fully global Internet that its control by a single nation is no longer justifiable. Some would prefer that the ultimate stewardship reside in an intergovernmental body, such as a U.N.-affiliated agency—for example, the International Telecommunication Union—or a new organization specifically negotiated by treaty, such as a “World Internet Organization”; others prefer an international body that includes governments, the private sector, and civil society. Many of the critics are national governments that have felt left out of the ICANN process, in which their representation is through the Governmental Advisory Committee (GAC),5 which until 2003 had advisory status only.6,7 Indeed, Brazil has asserted that “it is a myth that governments have a say in ICANN’s activities via the GAC … the influence of governments is comparable to the influence of non-shareholders in a private company.”8

3  

For information about the World Summit on the Information Society, see <http://www.itu.int/wsis/>.

4  

See “Global Fight Looms for Net Management,” Reuters, September 16, 2003, available at <http://news.com.com/2102-1028_3-5077101.html>.

5  

As of March 2005, the Governmental Advisory Committee comprised the representatives of 94 nations, as well as several international and regional organizations with observer status—the African Telecommunications Union (ATU), Agence Inter-Gouvernmentale de la Francophonie, Asia Pacific Telecommunity (APT), Commonwealth Telecommunications Organization, Economic Commission for Africa, International Telecommunication Union (ITU), Organization for Economic Cooperation and Development (OECD), Pacific Islands Forum, and the World Intellectual Property Organization (WIPO).

6  

For a history and analysis of the role of the GAC in ICANN, see Wolfgang Kleinwachter, “From Self-governance to Public-private Partnership: The Changing Role of Governments in the Management of the Internet’s Core Resources,” Loyola of Los Angeles Law Review 36(Spring): 1103-1126, 2003.

7  

In September 2004, Norway argued, in a submission to a preparatory meeting for the WSIS, that the GAC needs stronger funding and “cannot continue to have a mere counseling role to the ICANN.” Norway called for a stronger and better-funded secretariat that would enable the GAC to focus on more strategic and political issues. See World Summit on the Information Society, Working Group on Internet Governance, written contribution from Norway, which is available at <http://www.itu.int/wsis/preparatory2/wgig/norway.pdf>.

8  

As reported by ICANNWatch: “WGIG Will Reassess—or Reassert?—Governments’ Role in Internet,” which is available at <http://www.icannwatch.com/article.pl?sid=04/09/21/1812238&mode=thread>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

However reasonable the move toward international stewardship might appear in theory, in practice any change can be made only with the acquiescence and active participation of the U.S. government. Not only would the U.S. government have to be an important party to any transfer, but it also holds an effective veto because all of the root name server operators would have to agree to accept the root zone file from a new source, yet 3 of the 12 operators are U.S. government agencies and 6 others are U.S.-based organizations that may well be reluctant to take actions contrary to the wishes of the U.S. government.

5.1.3 Alternatives

In this light, an examination of three alternatives to U.S. government stewardship is instructive: an existing intergovernmental organization, a new international organization formed by treaty, or an international (but non-governmental) organization, such as ICANN or a successor. (Another possibility would be to divide DNS governance responsibilities among several organizations, each of which would have its own steward. Although that may be an outcome of DNS governance decisions, this section addresses the stewardship of the manager or managers of the DNS, whatever form it or they should take.)

Alternative A: Existing Intergovernmental Organization—International Telecommunication Union
Description

Of all the existing intergovernmental organizations, the one that claims the most relevant experience and that has expressed the greatest interest in DNS governance is the Geneva-based International Telecommunication Union (ITU), a treaty organization affiliated with the United Nations.9 Its membership comprises about 190 nations as well as more than 650 firms and international organizations in the telecommunications and information technology industries. Its Standardization Sector (ITU-T) has long experience with the adoption and implementation of international telecommunications standards, primarily for telephony but also for some computer networking technologies that are now considered histori-

9  

Other U.N. agencies have expressed interest in the broader question of Internet governance, among them the United Nations Educational, Scientific, and Cultural Organization, which prepared a position statement for the U.N. I.C.T. Task Force Global Forum on Internet Governance held in March 2004 in New York. See <http://www.itu.int/wsis/preparatory2/wgig/unesco.pdf>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

cal in much of the world.10 A separate organization within the ITU, the Radiocommunication Sector (ITU-R), has responsibility for radio frequencies and some regulatory authority under the applicable treaties. Its processes and procedures are mature and, according to the ITU, “there are sufficient checks and balances in place to ensure that vested interests cannot misuse ITU processes for their particular interests.”11 All member governments and any interested private company (including registries, registrars, Internet service providers (ISPs), and equipment suppliers) can participate in ITU-T’s work, but unless there is general agreement, only governments can vote and only governments can be represented in ITU’s council, which has overall policy and strategy responsibility between ITU plenipotentiary conferences.

Because the ITU is an intergovernmental organization, it has sovereign immunity, which obviates the need for liability insurance or worry about liability affecting its decisions. Since concerns about the legal liability it might be assuming appear to have affected ICANN’s willingness to, for example, enter into agreements with some ccTLDs that wanted to hold it to predefined performance standards, and could affect its ability to take on other roles, this advantage of an intergovernmental organization has some weight. Conversely, however, it may make the ITU a less attractive alternative to those ccTLDs and others that want to be able to hold a governing organization liable if it fails to perform its functions satisfactorily.

The ITU members voted at its 2002 Plenipotentiary Conference in Morocco that it should play an active role in “discussions and initiatives” related to the DNS and IP address system with the goal of becoming the forum in which public policy issues of Internet naming and numbering are resolved. In its resolution from the meeting, the ITU identified “stability, security, freedom of use, protection of individual rights, sovereignty, competition rules, and equal access for all” as important public policy issues.12 Since that meeting, the ITU has campaigned for a more active role in governance of the Internet generally and the DNS specifically. Its

10  

“The ITU-T performs world-wide administration, and acts as the forum for policy management, of a number of naming and address allocation systems that are essential for the good functioning of critical infrastructures, including the physical-layer infrastructure of the Internet itself … [and] such well-known examples as the E.164 numbering resource and the E.212 mobile numbering resource.” See Houlin Zhao, ITU-T and ICANN Reform, Telecommunication Standards Bureau, ITU, April 17, 2002, pp. 3-4, available at <http://www.itu.int/ITU-T/tsb-director/itut-icann/ICANNreform.html>.

11  

Zhao, ITU-T and ICANN Reform, 2002.

12  

ITU Resolution 102, Management of Internet Domain Names and Addresses, Marrakesh, Morocco, 2002, available at <http://www.itu.int/osg/spu/resolutions/2002/res102.html>. Also see Kevin Delaney, “Global Organization Seeks Voice in Internet Addressing System,” Wall Street Journal, October 21, 2002, p. B4.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

sponsorship of the Workshop on Internet Governance in February 2004 and its consultation on forming the Working Group on Internet Governance in September 2004 are indicative of its continuing active interest.13

Evaluation

The principal arguments in favor of moving stewardship of the DNS to the ITU are the broad international participation in the ITU, both by governments and industry; its established processes for policy making; its secure funding and sovereign immunity; and its long experience with management of international telecommunications resources. Its international treaty status would, perhaps, also give it greater influence over the ccTLDs and the root name server operators. At the same time, ITU-T cannot make decisions affecting competing parties or take actions without agreement by its membership. If there is a disagreement between governments, aside from attempting to mediate, ITU-T can do nothing until a plenipotentiary conference acts to resolve the matter, since only it has the authority to make recommendations to governments (which, however, can still ignore them). Furthermore, the ITU’s charter does not allow intervention in disputes within countries, such as might occur over the delegation or redelegation of a ccTLD registry.

There are, moreover, objections to the ITU’s assumption of the DNS stewardship role from the Internet technical and user communities and, significantly, from the U.S. government.

The technical and user communities have a distrust of the ITU for its long record of opposing the Transmission Control Protocol/Internet Protocol (TCP/IP) and for its unwillingness to make its standards publicly available for use on the Internet. Additionally, they fear that the ITU’s bureaucracy and its structure and processes, which require that governments sign off on decisions, will lead to extremely slow decision making unable to keep pace with the requirements of managing the DNS. Many also fear that the large telecommunications companies, which have a long-standing interest in and presence at the ITU, will dominate the processes. It has generally been difficult for individuals and public interest groups to participate in the ITU’s processes, although the ITU has expressed a commitment to change. Although it engaged individuals and groups in the meeting on Internet governance that it sponsored in association with the WSIS,14 it excluded non-governmental organizations from the decisionmaking sessions and it has not moved to change the ITU’s charter or ITU-T’s internal rules to permit their active participation.

13  

See materials at <http://www.itu.int/osg/spu/intgov/index.phtml/>.

14  

See a list of participants at <http://www.itu.int/osg/spu/forum/intgov04/>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

The user communities are also concerned that the ITU would become a vehicle for governments to exercise control over the registration of domain names and would use that control to enforce other policies such as the local taxation of Internet commerce, intellectual property protection, and the restriction of free speech and rights to privacy.

From what is known of current U.S. government attitudes, both in the executive and legislative branches, transfer of DNS stewardship to an intergovernmental organization is not likely to be supported now or in the near future, although such attitudes can change.

Conclusion: Despite the interest of the ITU and some of its national members in its assuming stewardship of the DNS root, that does not appear to be a realistic alternative for the near future.

Alternative B: International Treaty Organization
Description and Evaluation

The negotiation of an international treaty to establish a special agency of the United Nations for Internet governance is also not likely to be supported by the U.S. government. The example of other such negotiations has shown that they take many years to complete, especially if governance or binding regulation are contemplated among its authority, rather than just coordination or standardization, and are unlikely to succeed in the absence of strong and sustained efforts by many nations, which despite the currently expressed concerns does not seem likely. So this alternative does not appear to be realistic in the near term either.

Conclusion: Although it is possible that the U.N.-sponsored 2005 World Summit on the Information Society will lead to proposals for some form of internationally negotiated, quasi-governmental or multi-stakeholder organization with oversight or other influence over DNS governance, specific proposals are not yet (in December 2004) on the table and cannot be evaluated for either their practicality or their feasibility.

This leaves the third alternative, which follows.

Alternative C: Private Organization with International Participation
Description

The only institution to which the U.S. government has expressed its willingness to transfer its stewardship of the DNS is ICANN, or a similar

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

private, non-profit successor. Furthermore, this transfer of stewardship could occur only after ICANN (or a successor) had established its ability to operate effectively, reliably, and with wide international and constituency support for a number of years. Indeed, in its statement regarding the 1-year extension of its MoU with ICANN in September 2002, the DOC said:

The Department of Commerce (Department) continues to support the goal of a private sector management of the Internet domain name system (DNS). Innovation, expanded services, broader participation, and lower prices will arise most easily in a market-driven arena, not in an environment that operates under substantial regulation. To this end, the Department has long maintained that a private sector organization is best able to respond nimbly to DNS issues in the rapidly evolving Internet space. Further, in order to garner international respect and function stably and soundly in the long-term, such an organization must be globally and functionally representative, operate on the basis of open and transparent processes, and possess robust, professional management.15

In September 2003, the DOC granted ICANN a 3-year extension of its MoU and indicated that if the agreement’s milestones are met, it is prepared to complete the transition of DNS management to the private sector at the end of that period.16 More recently, in conjunction with ICANN’s July 2004 meeting, the Assistant Secretary of Commerce for Communications and Information issued a statement expressing pleasure that “ICANN has timely met the MoU milestones to date. Clearly more work remains to be done for ICANN to achieve functional, sustainable independence. We look forward to continuing to work collaboratively with ICANN … as we complete the transition to independent, private sector management of the Internet Domain Name System.”17

Evaluation

Although these statements indicate the U.S. government’s willingness to give up the ultimate stewardship of the root, they also demonstrate its

15  

Department of Commerce (DOC), “Department of Commerce Statement Regarding Extension of Memorandum of Understanding with ICANN,” September 19, 2002, available at <http://www.ntia.doc.gov/ntiahome/domainname/agreements/docstatement_09192002.htm>.

16  

See amendment 6 to ICANN/DOC Memorandum of Understanding, September 16, 2003, available at <http://www.icann.org/general/amend6-jpamou-17sep03.htm>; and DOC, “Department of Commerce Statement Regarding Extension of Memorandum of Understanding with ICANN,” September 16, 2003, available at <http://www.ntia.gov/ntiahome/domainname/agreements/sepstatement_09162003.htm>.

17  

Department of Commerce, National Telecommunications and Information Administration, “Statement by Assistant Secretary Michael D. Gallagher on ICANN’s July Meeting in Kuala Lumpur,” press release, July 19, 2004, DOC, Washington, D.C.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

unwillingness to do so until it is assured that ICANN can manage the DNS “in a manner that promotes stability and security, competition, coordination, and representation.”18

The stewardship role of the DOC, while a matter of political concern to some nations, has not impeded ICANN’s governance role, with the important exception of sometimes substantial delays in approvals for routine changes in the root zone file, a situation that improved during 2004.19 (See “Approving the Root Zone File” in Section 3.3.3). For example, the DOC has not overridden any ICANN recommendations for reasons of U.S. national interest. The issues that have arisen about the governance of the root have, rather, concerned the way in which ICANN operates in preparing its recommendations to the DOC and not in the way that the DOC operates once it receives those recommendations. In that respect, the decision to establish an organization to take on the day-to-day administration of the root has successfully reduced those pressures on the U.S. government while, at the same time, preserving its ultimate stewardship.

The Internet in general and the DNS in particular have been developed and governed with the goal of technically enabling equitable access to all locations on the Internet to users anywhere on the globe. To best serve the worldwide Internet and the DNS, the U.S. government’s influence needs to continue to be exercised carefully and, in particular, this influence should not be used as an instrument of U.S. domestic or foreign policy in areas far removed from the Internet.

Conclusion: Governance of the DNS is not an appropriate venue for the playing out of national political interests.

The technical legacy of the DNS’s development and initial implementation in the United States, such as the use of the ASCII character set for domain names and the concentration of root servers in the United States, has been a source of concern to some countries. Such concerns have been

18  

DOC, “Department of Commerce Statement Regarding Extension of Memorandum of Understanding with ICANN,” September 16, 2003, p. 2.

19  

There has been dissatisfaction among the ccTLD managers over the length of time required by ICANN and the DOC to approve routine changes to the root zone file. In response, ICANN prepared a revised process designed to cut the time substantially and to keep requesters informed of progress in the approval process. See Internet Assigned Numbers Authority (IANA), “Procedures for Handling Requests by ccTLD Managers to Change Nameservers,” May 13, 2003, available at <http://www.iana.org/cctld/nameserver-change-procedures-13may03.htm>. These revised procedures and other changes have significantly reduced the time taken to make changes in the root zone file as reported by the general manager of ICANN/IANA at the Kuala Lumpur meeting of ICANN. His full report, including specific data, is available at <http://www.icann.org/presentations/barton-forum-kl-22jul04.pdf>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

or are in the process of being addressed and they should, consequently, be substantially reduced or eliminated.

Although there may be continued objection by some nations to the right of the U.S. government to exercise its role,20 the United States has committed itself to a contractual 3-year transition to ICANN under the conditions laid out in the amended MoU. The real question is whether ICANN will be able to gain full legitimacy in the perception of other national governments and constituencies during this period.

Conclusion: The continued evolution of ICANN to attain legitimacy among its critical constituencies and, consequently, to receive stewardship responsibility from the U.S. government appears to be the most feasible path to governance of the DNS that is broadly accepted as international.

The prospects of ICANN’s assuming stewardship of the DNS are addressed in the discussion of ICANN’s role that follows.

5.2 MANAGEMENT OF THE DOMAIN NAME SYSTEM

Issue: What changes, if any, are required in ICANN’s organization and management for it to achieve greater legitimacy?

When the DOC delegated responsibility for day-to-day management of the root to ICANN in 1998, it was with the expectation that ICANN would soon be perceived as a legitimate steward of the root as well. Yet, although ICANN is not a part of the U.S. government and its board has had an international membership, its legitimacy was not immediately accepted.21 The critics’ concerns have been with (1) ICANN’s scope, (2) its organizational structure, (3) or its management processes, or with all three. The concern about scope has been the extent to which ICANN has exceeded its specific technical-administrative responsibilities to, for example, regulate TLD registry operations. The concerns about structure have included a perceived imbalance in the historical composition of ICANN’s board, failings in the processes by which the board was selected, and the inadequate representation of certain constituency groups. The concerns about management processes have included the lack of transparency, effectiveness, accountability, and recourse in ICANN’s electoral and decision processes.

20  

In the recent U.N.-sponsored forums on Internet governance, a few nations have expressed a concern that their ccTLDs could be removed from the root by the U.S. government for political reasons.

21  

See, for example, Jonathan Weinberg, “ICANN and the Problem of Legitimacy,” Duke Law Journal 50:187-257, 2000.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

5.2.1 Scope of ICANN’s Authority

The first controversy affecting ICANN’s perceived legitimacy is its appropriate scope—the extent of its responsibilities and authority. On the one hand, there are those who believe that ICANN should stick as closely as possible to its technical-administrative charter, eschewing responsibility for seemingly related matters that require it to make value-laden judgments that have political, commercial, or social effects.22 Such matters include the administrative approval of new gTLDs, regulation of the business practices of gTLD registries, and the delegation or redelegation of ccTLD registries. On the other hand, ICANN currently engages in each of those activities as a result of decisions taken by its staff and board during its early years. ICANN may have assumed those decision responsibilities because there was no other organization able to take them on, because they believed that there was no non-judgmental way of resolving issues that ICANN confronted in connection with its technical-administrative responsibilities, or because of the views and aspirations of the board and staff.

There should be a connection among the breadth of ICANN’s activities, the pressure on it to broaden membership on its board and engage more constituencies in its decisions, and the acceptance of its legitimacy by various constituency groups. Were ICANN able, for example, to narrow its scope primarily to the IANA administrative functions, to use economic processes such as auctions or lotteries to allocate TLDs, and to delegate to third parties the politically sensitive decisions such as redelegation of ccTLDs, then the pressures might ease, and acceptance of ICANN’s legitimacy as an essentially administrative body might become easier. However, in actual implementation, even economic processes require some potentially sensitive decisions to be taken (see Section 5.4.2); delegation entails the question of delegation to whom; and apparently routine administrative processes, such as contracting with a gTLD registry, entail judgments about what provisions—if any—are necessary to protect the technical integrity of the DNS, safeguard the interests of registrants, and meet the needs of intellectual property owners while preserving freedom of expression.

Conclusion: ICANN is more likely to achieve perceived legitimacy with a narrower scope rather than with a broader one.

22  

See, for example, Center for Democracy and Technology, ICANN and Internet Governance: Getting Back to Basics, July 2004, available at <http://www.cdt.org/dns/icann/20040713_cdt.pdf>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

However, it may not be possible or desirable to narrow ICANN’s scope to a purely technical-administrative one because of the difficulty of performing such functions without making some politically, socially, or economically sensitive judgments. Moreover, ICANN might very well attract controversy simply because it would be the most visible organization with some, however limited, authority over the DNS.

5.2.2 Composition of the ICANN Board

The second controversy concerns ICANN’s organizational structure. If it is to be widely perceived as legitimate, what should the composition of the ICANN board be and how should its members be selected? Those questions have been the subject of dispute since ICANN was formed. To a large extent, the dispute stems from different views of ICANN’s proper scope.

Those who believe that ICANN is principally a technical-administrative body may favor selection of the board by members of the technical-administrative community from among the members of that community on the basis of expertise and experience—a traditional process in that community. In contrast, those who see ICANN as a major element of Internet governance may favor a board comprising representatives of the broad Internet user community chosen, so as to achieve legitimacy, through an open electoral process—Internet democracy. Those who see ICANN’s scope as lying between these two views might favor a board representative of various constituencies selected through some combination of constituency elections and peer selections. Finally, some governments feel that because the Internet (and the DNS) has become a central element of the global communications infrastructure, it requires governmental oversight and regulation and, therefore, ICANN’s board should consist only or principally of governmental representatives.23

Much of the debate about ICANN’s board stems from the differences among these perspectives.

In its first days, the 18-member ICANN board was selected without participation by many Internet constituencies, despite a DOC-imposed requirement in its bylaws that half the board be elected by a membership. The board’s composition quickly became a source of controversy as ICANN addressed issues of broad significance and social-economic-political consequence, such as the addition of new gTLDs and the

23  

Since those countries have principally been calling for the ITU or another U.N. agency to assume DOC/ICANN functions, they have not at the time of this writing made this suggestion. However, should they determine that those options are not feasible, they might turn to this view.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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development of the UDRP. This put ICANN under pressure to implement the requirement for democratically chosen representation of the broad Internet community on the board. That pressure led it to experiment with a process of open Internet voting for five (the DOC-required one-half would have been nine) regionally representative members of the board. That experiment, in turn, raised questions among some ICANN participants about the legitimacy of an open Internet vote, which they charged was vulnerable to capture by intensely interested, but not necessarily representative, groups and open to possible fraud. Others felt that it brought onto the board new members whose views were more representative of those of the broader Internet community than were the views of the previously appointed members.24 Recently, ICANN has moved away from that model of a partially elected board to one that more closely follows the in-between case described above. The 15-member board in 2004 comprises six representatives selected by the three major constituency groups (the Generic Names Supporting Organization—GNSO; the Country Code Names Supporting Organization—ccNSO; and the Address Supporting Organization—ASO); eight others chosen by a board-selected nominating committee, which includes representatives of ICANN stakeholders, from nominations made by constituency groups and the public; and the ICANN president, serving ex officio.

The legitimacy of the ICANN board has also been undercut by the perception by some that the selection of its initial members was severely flawed. Critics charge that it was done top-down by ICANN’s managers and did not represent a diversity of views. In their judgment, board members lacked political experience and ties to constituencies and were, therefore, ill-prepared to supervise the managers who selected them. Most of the members of that initial board remained in place longer than anticipated, during which time many of the key policies and processes of ICANN were put in place. These critics see the selection, composition, and actions of the initial board as having weakened ICANN’s claims to legitimacy.

Since disagreements about ICANN’s board composition and selection appear to arise in some measure from different views of ICANN’s scope, they are likely to be difficult to resolve unless and until there is broader agreement on that scope. In the more likely situation, where there is not agreement among all parties on its scope, ICANN will probably

24  

A recent academic study of ICANN’s experiment in “running a representative and open corporate decision-making process” judged it to have “largely failed.” See John G. Palfrey, Jr., “The End of the Experiment: How ICANN’s Foray into Global Internet Democracy Failed,” Research Publication No.2004-2, Beckman Center for Internet & Society, Harvard University, 2004, available at <http://cyber.law.harvard.edu/publications>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

continue to be subject to some criticisms of its legitimacy. As in all political processes, ICANN’s goal will be to ensure that the most important constituencies are not among the critics. In particular, it will have to convince the Department of Commerce that it has achieved legitimacy among the most important constituencies in order to fulfill the terms of its most recent MoU with the DOC.

It should also be noted that even if there were agreement on ICANN’s proper scope, ICANN would still face numerous practical problems of representation. What would it take, for example, for it to be seen as truly international? Does it suffice, for example, simply to have one board member from each region? Or should the distribution of board membership better reflect Internet usage in each country or region? Or should it, perhaps, reflect the geographic distribution of registered domain names? This appears to be an inherently difficult problem to which any proposed solution may incur objections from some of those nations that are not directly represented. (Even direct representation may not suffice. Two of the countries that have been most critical of ICANN in international forums are Brazil and China, both of which have nationals on the ICANN board.)

In a similar way, the broadest view of ICANN’s appropriate scope implies that the board reflects the many Internet constituencies having an interest in its decisions. But there is no agreed list of those constituencies, nor would the list be likely to remain unchanged. Even assuming that a list could be agreed upon, should one board member be selected from each constituency despite the fact that constituencies are of different size and degrees of importance? And how should each constituency make its selection? In the event that elections are used: Who is the electorate? How are they to be reached? How can the validity of their votes be assured?

These difficulties are not matters of ICANN’s making. They arise from the unique situation in which it finds itself and would confront any other non-governmental organization attempting to manage an economically, socially, and politically significant component of the global infrastructure.

Conclusion: No composition of the ICANN board, no matter how arrived at, is likely by itself to confer the perception of legitimacy on ICANN among all its possible constituency groups.

5.2.3 Nature of ICANN’s Management Processes

The third controversy concerns ICANN’s management processes. Perhaps the goal of perceived legitimacy could be achieved through refining the processes by which ICANN carries out its work and makes its decisions. From its inception, ICANN has indicated that it would use bottom-up, consensus-based, and transparent decision processes. The aspiration

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

for such processes largely reflected the culture of the early Internet community, especially the Internet Engineering Task Force (IETF). It fit well with that small, relatively homogeneous group in which technical expertise and experimental results drove most decisions. However, it has not turned out to be as effective a tool for making the value-laden decisions that have faced ICANN in an environment with a very large number of users, many of whom are not technical experts, holding highly diverse and often fundamentally different goals and values that are often not susceptible to resolution through consensus.

Although ICANN put in place a formal structure of constituency groups with apparent input into the board’s decision processes, prior to the recent reform, at least, it had not succeeded in employing them in such a way that they were perceived to identify consensus views, or even to ensure that all constituency opinions were heard during the process. In part, this was the result of failure of the constituency groups to participate, but there were also questions about the weight given to some constituency groups and the absence of others.

Thus, although ICANN has made efforts to fulfill its promises using the current processes, it appears doubtful that—as long as ICANN is more than a purely technical-administrative body—any set of processes that was both efficient and effective could be restricted to bottom-up, consensus decision making among imperfectly defined constituency groups.

ICANN’s existing processes have also been heavily criticized for their lack of transparency, for the failure to document the logic of decisions, for the absence of a process of appeal, and for the heavy reliance on non-accountable staff and consultants. Many ICANN observers view accountability as an “essential component of legitimacy for ICANN.”25

Conclusion: Improvement of ICANN’s processes appears to be a necessary step toward strengthening its perceived legitimacy.

For the reasons noted above, it would be difficult to strengthen ICANN’s perceived legitimacy if the focus on bottom-up, consensus decision making were retained. It would be more practical to concentrate on

25  

Center for Democracy and Technology, “Comments of the Center for Democracy and Technology to the Committee on ICANN Evolution and Reform,” May 3, 2002, available at <http://www.cdt.org/dns/icann/020503ceir.shtml>. See also Tamar Frankel, “Accountability and Oversight of the Internet Corporation for Assigned Names and Numbers (ICANN),” Report to the Markle Foundation, July 12, 2002, available at <http://www.markle.org/news/ICANN_fin1_9.pdf>; and Center for Global Studies, “Enhancing Legitimacy in the Internet Corporation for Assigned Names and Numbers: Accountable and Transparent Governance Structures,” final report to the Markle Foundation, September 18, 2002, available at <http://www.markle.org/news/ICANN_Final_Sept18.pdf>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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making conventional majority-vote decisions through processes that are accepted by its constituencies as being open to input from all those having a legitimate interest, transparent and observable in all their stages, and fair to all participants.

5.2.4 Alternatives

In response to the criticisms of its structure and management practices, ICANN began implementing a significant reform in early 2003. During 2002, while it was examining what specific steps to take, a number of external groups put forward specific proposals of their own. Those proposals demonstrate the diversity of the interests that attempt to influence ICANN and that remain active or potential critics of its efforts. Furthermore, should the current ICANN reform not prove successful, those proposals are likely to reappear in their original or a modified form. Thus, both to show the forces that ICANN faces and to characterize the alternatives to its current reform, this section summarizes and evaluates some of the major alternative paths that have been proposed for ICANN to achieve legitimacy in the eyes of its critical constituencies.

Two distinctly different groups of approaches to ICANN’s structure were proposed: broadening and narrowing. The broadening approaches would keep or extend ICANN’s scope and keep or broaden the number of groups that participate in its processes on the board and through other means. In contrast, the narrowing approaches would narrow both ICANN’s scope and the diversity of stakeholders directly involved. Each approach would also have consequences for the nature of the processes ICANN employed.

The alternatives described and evaluated below include two broadening proposals—one by the Markle Foundation and the other by the Non-governmental Organization and Academic ICANN Study group—and two narrowing proposals, one that ICANN serve solely as the registry for the root and another that it be a private trade association. The discussion concludes with two proposals that combine a narrowing of scope with a broadening of participation—a proposal by the Center for Democracy and Technology, and the actual reform that ICANN adopted in 2003.

Alternative A: Markle Foundation Proposal (2002)
Description

The president of the Markle Foundation, Zoë Baird, presented recommendations for improving ICANN’s credibility and legitimacy in a 2002

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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Foreign Affairs article.26 These recommendations entailed changes to broaden participation in the board and to improve its processes.

With respect to the board, Baird said:

ICANN’s credibility as a global manager of critical parts of the Internet’s infrastructure depends on the board’s ability to ensure that all the various private and public interests are represented [emphasis added]. Government involvement is one step toward providing public-interest representation but is insufficient on its own. Only with truly broad representation on its board—including non-profit organizations—can ICANN adequately address the crisis of legitimacy that plagues it [emphasis added].27

Baird also recommended changes in ICANN’s processes:

ICANN must take steps to bolster transparency and accountability. These steps should include some kind of public oversight by politically accountable officials; development of due-process principles and clear, publicly available procedures for the resolution of complaints; public disclosure of its funding sources and budgets; staff and board members who are held accountable to a clear set of professional norms and standards; open meetings; and documentation of the rationale for ICANN’s policy decisions and actions.28

Evaluation

Although pointing in attractive directions, the Markle proposal’s recommendations about ICANN board composition are, unfortunately, too general to confront and resolve the practical difficulties of their implementation. For example: What are the groups that constitute “all” public and private interests that should be represented on the board? How many different governments need to be on the board to represent all public interests? How many non-profits need to be represented to cover all other public interests? In sum, how many board members would be required to provide representation of all public and private interests? How can the number be kept from becoming unwieldy?

The Markle proposal’s recommendation on process, although still general, appear to lead more directly to practical implementation. In the specific case of “public oversight by politically accountable officials” it should be observed that, in fact, that is the role that the DOC currently plays and effects through its MoU with ICANN. For reasons adduced before, it is not clear that the U.S. government would be agreeable to shar-

26  

See Zoë Baird, “Governing the Internet: Engaging Government, Business, and Nonprofits,” Foreign Affairs, November/December 2002, pp. 15-20.

27  

Baird, “Governing the Internet,” 2002.

28  

Baird, “Governing the Internet,” 2002.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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ing that oversight with officials of other governments. Even if it were, there is the question, once again, of which governments and which public officials should play that role.

Alternative B: Non-governmental Organization and Academic ICANN Study Proposal (2001)
Description

The Non-governmental Organization and Academic ICANN Study (NAIS) group described itself as “a collaboration of experts from around the world, formed to explore public participation in ICANN and the selection of At-Large Directors on ICANN’s governing board.”29 The NAIS group was self-selected and directed but was funded by a grant from the Markle Foundation, whose president is Zoë Baird, author of the Foreign Affairs article in which alternative A appeared. In its report, published in August 2001, the NAIS group summarized its arguments for broad public participation in ICANN’s board:

  • “The mission, character, and history of ICANN requires [sic] global public participation and representation for its long-term legitimacy and stability.”

  • “To the extent possible, the entire affected Internet community—from companies in the business of providing DNS services, to domain name holders impacted by ICANN’s rules, to individual Internet users and consumers whose activities online could be shaped by ICANN’s rules—should be considered stakeholders in ICANN’s activities.”

  • “ICANN’s existing supporting organization structures [in 2001], or representation by governments, do not alone provide appropriate public participation.”

  • “‘At-Large’ Participatory Structures and Representation on the Board are therefore essential channels for broader stakeholder involvement and ICANN’s legitimacy.”

On the basis of these arguments, the NAIS group’s report asserted two “overarching principles: The public membership [of ICANN] should be given structure and the public membership should be given representation.” To fulfill those principles, it made six recommendations:

29  

Non-governmental Organization and Academic ICANN Study Group, “ICANN, Legitimacy, and the Public Voice: Making Global Participation and Representation Work,” August, 2001, available at <http://www.naisproject.org>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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  • “ICANN should constitute a broad membership open to all who complete a relatively simple registration process.”

  • “… the At-Large Membership should have internal structures that promote policy deliberation, coalition building and information sharing among Members.”

  • “The public voice in ICANN should be represented at the Board level through a number of At-Large Directors equal to the number of Directors chosen by the Supporting Organizations.”

  • “At-Large Directors should be chosen through direct election by the At-Large Membership. Direct elections, while imperfect, are more likely to provide ICANN with global legitimacy than other proposed options.”

  • Specific processes should be followed to authenticate voters, to achieve both geographic and global representation, and to refine election policies.

  • To ensure the public’s voice in ICANN, it should develop structural constraints on Board authority, create additional accountability mechanisms, and should pursue Supporting Organization reform—structure, processes, and Board representation.

“Thus,” the NAIS group’s report concluded, “it is essential for ICANN to establish an inclusive, open At-Large Membership, with a clear means to participate in the decision-making process and substantial direct representation on the Board.”

Evaluation

This is a clear and full expression of the view that ICANN’s influence on the Internet is so broad and important that the Internet’s end users must have a strong role (equal to that of the supporting organizations) in its governance. It avoids the question of determining which constituencies should be represented by merging them all into a common “public” constituency comprising all who sign up and are authenticated through the best available method. Representation would be by region, with some global representatives as well. Voting would be done online, which has the advantages of speed, global availability, and economy but has been criticized because of the potential for fraud, for capture or disruption by a determined group, and for possibly wide national differences in participation. In addition, the populations and Internet participation rates differ greatly among regions, suggesting that equal representation may not be the best approach.

While opening participation to such a broad potential membership would undoubtedly increase the perception of ICANN’s legitimacy

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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among a number of its constituencies, open participation might have the opposite effect on those constituencies that take a narrower view of ICANN’s role and stakeholders. This illustrates the point made in Section 5.2.2 that differing, perhaps irreconcilable, views of ICANN’s role lead to different views about the proper composition and selection of its board. (The ICANN reform (alternative F) that is being implemented did create the At-Large Advisory Committee (ALAC) with a non-voting liaison member on the board.)

Alternative C: ICANN as Registry for the Root (2004)30
Description

The opposite approach (to alternative B) to enhancing ICANN’s perceived legitimacy would be to focus ICANN on its primary role as registry for the root,31 with responsibility for reliability, security, accuracy, and availability, and to design its governance and operations accordingly.

Under this approach, ICANN’s governance would be simplified by narrowing its controlling constituencies to four groups of primary stakeholders:

  • The gTLD and ccTLD registries that depend on the root to direct potential users to them,

  • The root name server operators that provide access to the root zone file,

  • The Internet service providers (ISPs) and intranets that rely on the root to enable them to do lookups on the TLDs, and

  • The technical community that defines protocols and standards affecting the root and its operation.

Only these groups would participate directly in ICANN’s governance. Since all of them are directly affected by or directly affect the operation of the root, they would, in effect, constitute a self-governing body. Following the tradition established by ICANN, these stakeholder groups could

30  

This proposal has been constructed for discussion purposes only. It is not a recommendation by the committee. It was created to illustrate how a narrowly focused ICANN might operate and be governed. It bears some resemblance to, but differs in important ways from, the perspective presented in Elliot Noss, Timothy M. Denton, and Ross Wm. Rader, “A New Approach to ICANN Reform: The Heathrow Declaration,” March 25, 2002, available at <http://www.byte.org/heathrow/heathrow-declaration-v0r0d5-032502.html>.

31  

ICANN’s other roles concerning the IP address space and protocols could be retained or turned over to a strictly technical body.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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organize themselves into supporting organizations or forums to consider issues of special interest to their respective groups and to forward proposals to the ICANN board.

(The group of domain name registrants and the registrars that serve them are not directly included in this alternative, although they have a more direct interest in the operation of the DNS than, say, the much larger group of all Internet users. A variant of this alternative could include them, but it would make voting and funding much more complex and difficult to balance. This alternative assumes that their views will be heard either through the registries and ISPs or through direct presentation to the board.)

All other interested parties—international agencies, governments,32 private commercial and non-commercial users and suppliers, registrars, domain name registrants, individual Internet users, and public interest groups—would be considered secondary stakeholders that could influence ICANN through one of the primary stakeholders, by testifying at hearings and board meetings, and by lobbying individually or through private and public interest organizations.

Although ICANN would remain a not-for-profit organization, the TLDs, ISPs, and intranets would be required to pay a fee for listing in the root (if a TLD) or for access to the root zone file (if an ISP, intranet, or other large user33). A portion of the funds collected would compensate the root name service providers34 for their service and would subsidize the technical community to conduct testing and validation activities. The funds would also cover the costs of the IANA function of ICANN and its other registry activities.

The board’s members would be elected for fixed terms by the four or five stakeholder groups. The number of votes cast by each TLD or ISP would be proportional to its annual fee to ICANN, which would be in some relationship to its demand for root service, for example, as measured by the number of registrations for TLDs and the number of IP addresses for ISPs. The number of votes cast by each of the root service providers and by each technical organization would be proportional to the annual payments it received, which would be based on its

32  

National governments’ interests in their ccTLDs would not be subject to this body, except when a conflict over the operator of the ccTLD registry occurred.

33  

Small, non-commercial users would be exempt unless they wanted to participate in ICANN governance.

34  

Full implementation of this alternative would probably require replacement of the U.S. government-operated root name servers so that they could receive payments.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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requirements. (Note that the sum of the payment-based votes would equal the sum of the fee-based votes less a number of votes proportional to the operating expenses of ICANN itself. These could form a third category of votes that would be cast by the ICANN president.) Tying board voting power to payments would provide an incentive both for payment and for participation, particularly by the ccTLDs and root name server operators.

The board would operate like the board of a public agency, taking decisions based on its collective judgment as informed by public hearings. On special issues, stakeholders could petition for a stakeholder vote, similar to a shareholder vote in a commercial corporation.

Evaluation

The approach described in alternative C for narrowing ICANN’s scope is in strong contrast to the proposals for a broadly representative board that relies on bottom-up consensus-based processes. It substitutes a board that is intended to reflect the interests and experience of the immediate providers and users of root name service only. In doing so, it reconceives ICANN as a narrower, more technically focused body whose decisions would be limited to those that affect the ability of the root to meet the needs of those who have direct recourse to it. It would have the means to exercise authority over the root service providers through its payments to them, while they would gain influence on its decisions through their consequent voting power. Each TLD would pay a fee to be listed in the root, but the amount would depend on the number of its direct registrants (not including registrants in the subdomains of its registrants) and would be proportional to its voting power. Very large TLDs, such as .com, would have a substantial number of votes, but not enough to overcome the sum of the votes of other TLDs, the root name service providers, and the technical community. The most difficult issue would be imposing a fee on the ISPs for access to the root zone file since there is no practical way to prevent access to those that have not paid. The threat of exclusion from ICANN activities and decisions would be the primary incentive for payment.

Because it runs counter to the design intent of ICANN, to the cultural traditions of the Internet, and to ICANN’s own recent reforms, the approach of focusing ICANN on its role as registry for the root is unlikely to be adopted in the near future. However, it illustrates one possible model of a narrowly focused ICANN and stands, therefore, as a clear contrast to the more expansive models described in alternatives A, B, E, and F.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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Alternative D: New.net Proposal—ICANN as a Private Trade Association (2002)
Description

Another narrowly focused model for ICANN was proposed in 2002 by New.net. 35 Under this proposal, ICANN would gain legitimacy by reconstituting itself as an international consensus-based trade association for “parties interested in issues related to domain names, IP addresses and Internet protocols.”36 The association would be the vehicle for developing and promulgating industry-wide practices and policies. Because policies would be developed through industry consensus, its proponents believe that these policies and practices would be more likely to be adopted voluntarily by the association members. They point to the consensus process, for example, that led to film producers’ widespread adoption of the Motion Picture Association of America’s film rating practices.

ICANN as a trade association would also be characterized by a reliance on market forces as the “dominant factor in regulating conduct of persons buying, selling and using Internet-related products and services.”37 The forces of the market would be expected to induce entrepreneurs and companies to introduce a wide range of innovative services that would succeed or fail based on users’ experience with them, crucially including their interoperability with other services. In other words, the proponents of this alternative expect that many of the concerns that have driven ICANN to a regulatory model and, in particular, the protection of a single authoritative root and the controlled pace of new gTLD entries would be better handled by letting the market decide. These proponents believe that the market would reject any innovation that harms the functioning of the DNS and the Internet.

Where regulation would be required to supplement industry agreements and market forces, this alternative would rely on existing practices, using national, regional, and local governments or formal intergovernmental treaties. In the proponents’ view: “It is hubris to assume that there is something so special about Internet naming issues that the domain name industry requires a unique form of government that is different from all other industries.”38

One consequence of adopting this alternative would be the possible proliferation of DNS root zones, which might be created by countries un-

35  

New.net (see Section 3.3.1) is a commercial organization that offers an alternative root and related search service. It has an obvious self-interest in a proposal that calls for establishment of alternative roots.

36  

New.net, “A Proposal for More Realistic Domain Name Governance,” March 2002, p. 13, available at <http://www.new.net/WhitePaper_v2.pdf>.

37  

New.net, “A Proposal for More Realistic Domain Name Governance,” 2002, p. 15.

38  

New.net, “A Proposal for More Realistic Domain Name Governance,” 2002, p. 16.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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happy with U.S. control of the “legacy root” or desirous of one in their national language, or by corporations, like New.net, that see business opportunities in offering roots containing additional TLDs and operating under different policies. To alleviate the concerns of key players, the proposal suggests that the United States retain policy control of the legacy root; that other nations form a ccTLD association that would agree on the contents of the ccTLD component of the root; and that the United States contract with that association to ensure inclusion of those entries in the legacy root. Other root zone providers would decide whether to include the legacy root or the ccTLD entries in their root. Finally, the workings of the market would determine whether any root zone, other than the legacy root, would survive.

Evaluation

As with alternative C, the approach of ICANN as trade association moves away from the notion of a broadly representative board for ICANN and replaces it with a smaller set of stakeholders that have a direct interest in operating the root. However, it retains the basic consensus decision-making process and, while not specifically limiting the range of ICANN’s action, does indicate a strong preference for leaving decisions to the operation of market forces. Because of that preference, it loosens restrictions on the technical system of the DNS (such as maintenance of a unique root, regulation of TLD registry services, and a relatively slow, controlled addition of new TLDs) that many in the technical community have said are required to retain the Internet’s stability, openness, and uniform accessibility.

While obviously serving the interests of its principal proponent in allowing alternative roots and, thereby, opening the market for gTLDs, alternative D does suggest how a market-based, free-entry management of the root might be designed. Like the preceding alternative, new.net’s proposal challenges existing views, in this case those of the Internet technical community, about what constraints are required to protect the DNS technical system. Although it is unlikely to be put into practice in the near future, it is another model available for consideration should other reform efforts fail.

Alternative E: Center for Democracy and Technology Proposal—Narrowed Scope with Broad Participation (2004)
Description

In July 2004, the Center for Democracy and Technology published a report39 that called for both narrowing the scope of ICANN’s mission and

39  

See Center for Democracy and Technology, ICANN and Internet Governance, 2004. All quoted material in this section, “Description,” is from that report.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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broadening participation in its activities. At the same time, it supported the consensus-based approach to decision making.

With regard to mission, it urged ICANN to:

  • “Reaffirm the extremely limited mission that [it] was created to accomplish … the technical function of coordinating the assigning of names and numbers … and a few inextricably related policy questions”;

  • “Refrain from using [its] coordination role as leverage to engage in policymaking in broader areas”;

  • “Reassess and ensure its contracts with registries provide both the reality and appearance of a limited approach to coordination of registry activities”; and

  • “Adopt an approach to coordination that seeks to minimize policy impacts.”

With respect to participation in decision making, it urged ICANN to:

  • “Strengthen activities to engage diverse constituencies around the world in [its] decision-making.”

With reference to decision processes, it urged ICANN to:

  • “Support the consensus-based approach to decision-making that was core to the original concept under which [it] was created”;

  • Make its decision making “transparent, predictable and open to broad global participation by stakeholders, including users”; and

  • Make its “future policies binding only if they are supported by a demonstrable bottom-up consensus among affected parties.”

It also asserted that ICANN’s “only real and legitimate power comes from voluntary [emphasis in the original] contracts and certain other mutually acceptable relationships and agreements.”

Evaluation

Alternative E was published as a proposal in the context of the World Summit on the Information Society to refute the arguments and correct the misperceptions of those who see ICANN as a “precedent or justification” for international centralization of Internet governance. It does so by emphasizing the limited scope of ICANN’s original mission and its charter obligation to apply only policies arrived at by “bottom-up consensus among affected parties.”

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

Because it focuses on narrowing ICANN’s scope and at the same time encourages ICANN to broaden participation by diverse constituencies around the world and rely on consensus decision-making policies, alternative E appears somewhat inconsistent. For it would seem that restraining ICANN’s role to the technical-administrative function (and a few tightly linked policy matters) would, at the same time, reduce the number of interested constituencies and the range of policy issues requiring consensus decision making, though it would make the latter more feasible. It is primarily a call for ICANN to “get back to basics” and reverse the steps taken to set and apply non-consensus policies beyond ICANN’s original narrow scope.

Alternative F: Reformed ICANN—Narrowed Scope with Broad Participation (2003)
Description

The issues facing ICANN in 2002 of board composition, constituency participation, funding, and decision processes were brought into the open and given formal recognition when the then-president, M. Stuart Lynn, published a critique of ICANN’s operations.40 This led to the creation of a committee to study and make recommendations on ICANN’s governance. The committee’s report was published in October 200241 and its recommendations, after board consideration in November 2002,42 have been implemented.

The new ICANN bylaws, which took effect in 2003, have remade the governing structure of ICANN, especially the board and the supporting organizations that represent its constituencies. They are derived from a mission statement revised and sharpened in response to the widely held perception that ICANN had suffered from a vague and undefined concept of its mission. The new mission statement is as follows:

The Internet Corporation for Assigned Names and Numbers (ICANN) is the private-sector body responsible for coordinating the global Internet’s systems of unique identifiers.

The mission of ICANN is to coordinate the stable operation of the Internet’s unique identifier systems. In particular, ICANN:

40  

M. Stuart Lynn, “President’s Report: ICANN—the Case for Reform,” February 24, 2002, available at <http://www.icann.org/general/lynn-reform-proposal-24feb02.htm>.

41  

Committee on ICANN Evolution and Reform, “Final Implementation Report and Recommendations,” October 2, 2002, available at <http://www.icann.org/committees/evolreform/final-implementation-report-02oct02.htm>.

42  

ICANN Board of Directors Meeting in Shanghai, “Preliminary Report,” November 1, 2002, available at <http://www.icann.org/minutes/prelim-report-31oct02.htm>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×
  1. Coordinates the allocation and assignment of three sets of unique identifiers of the Internet—domain names, IP addresses and autonomous system (AS) numbers, and protocol ports and parameter numbers.

  2. Coordinates the operation and evolution of the DNS’s root name server system.

  3. Coordinates policy-development as reasonably and appropriately related to the performance of these functions.43

In conjunction with the mission statement, ICANN adopted 11 core values that ICANN will adhere to, including preservation of Internet stability, reliability, security, and interoperability; limiting activities to those benefiting from global scope; delegation where feasible; broad, informed participation; dependence on market mechanisms where feasible; promotion of domain name registry competition; open and transparent policy development; application of documented policies; speedy action; accountability; and sensitivity to the public interest and related governmental concerns.

Under the new bylaws, the governing structure consists of a board of directors with 15 voting members: 8 selected by a nominating committee; 6 selected by three supporting organizations44 (2 from each); and the president of ICANN, ex officio. In addition, there are 6 non-voting liaisons to the board: 1 each from five advisory organizations,45 and 1 from the Internet Architecture Board (IAB)/IETF. The nominating committee is charged to select directors to ensure that in aggregate the board has functional, geographic, and cultural diversity; the capacity to understand the global effects of ICANN’s mission and decisions; and credibility.

Each of the supporting organizations has its own internal structure, allowing for the representation of multiple constituencies. Each is responsible for the development of policy recommendations to the ICANN board

43  

ICANN Evolution and Reform Committee (ERC), “ICANN: A Blueprint for Reform,” June 20, 2002, available at <http://www.icann.org/committees/evol-reform/blueprint-20jun02.htm>, with revisions from ICANN ERC, “Final Implementation Report and Recommendations,” October 2, 2002, available at <http://www.icann.org/committees/evolreform/final-implementation-report-02oct02.htm>.

44  

The three supporting organizations are the Address Supporting Organization (ASO), which deals with the system of IP addresses; the Country-Code Names Supporting Organization (ccNSO), which focuses on issues related to the letter country-code top-level domains; and the Generic Names Supporting Organization (GNSO), which handles issues related to the DNS and the generic top-level domains.

45  

The four advisory committees are the At-Large Advisory Committee (ALAC) for the Internet community at-large; the DNS Root Server System Advisory Committee (RSSAC) for root server operators; the Governmental Advisory Committee (GAC) for governments; and the Security and Stability Advisory Committee (SSAC) for security. The fifth organization is the Technical Liaison Group (TLG) for standards groups.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

and developing internal consensus. The Nominating Committee comprises 11 members appointed by constituencies, 3 appointed by advisory committees, and 5 unaffiliated public interest persons appointed by the At-Large Advisory Committee. In addition, there are 2 non-voting liaisons from the other advisory committees and the Technical Liaison Group. The board appoints its chair.

In a move away from the consensus-based, bottom-up process that guided ICANN initially, the policy responsibility of the ICANN board has been strengthened:

The ICANN Board of Directors is ICANN’s ultimate decision-making body…. It is ultimately responsible for the management of the policy development process. Therefore, while it is highly desirable to seek and wherever possible find consensus, it does not follow that even proposals that enjoy consensus support should receive uncritical Board approval. The Board has a fiduciary responsibility to make decisions on the basis of good faith judgment in furthering the public interest.46

In response to concerns about transparency and accountability, the new bylaws call for the creation of an office of ombudsman, a manager of public participation to encourage full public participation in ICANN, and a strengthening of the reconsideration process applicable to both the staff and board and requiring prompt consideration. It also establishes an independent review process to review whether the board has acted consistently with the bylaws.

To strengthen government participation without directly including government representatives on the board, the bylaws call for the Governmental Advisory Committee to appoint a non-voting liaison to the board, a delegate to the nominating committee, and non-voting liaisons to each of the supporting organizations and to the other advisory committees.

In place of having five at-large board members elected by Internet users, that community is expected to be represented through the At-Large Advisory Committee, which will seek to engage individual Internet users through regional at-large organizations in five geographic regions.

Evaluation

The restated ICANN mission is to focus on its original mission—coordinating the stable operation of the Internet’s unique identifier systems. If the board adheres to that mission statement, the effect could be to narrow ICANN’s scope from that which has evolved since 1998. The reform, at

46  

ICANN ERC, “ICANN: A Blueprint for Reform,” 2002, and “Final Implementation Report and Recommendations,” 2002.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

TABLE 5.1 Alternatives for Organization of ICANN to Achieve Legitimacy

 

ICANN’s Role

Constituency

Broad

Focused

Broad

A. Markle (2002)

B. NAIS (2001)

Pre-reform ICANN

E. CDT (2004)

F. ICANN reform (2003)

Narrow

 

C. Registry for the root (2004)

D. Private trade association (2002)

the same time, takes a broad view of ICANN’s constituencies. The new bylaws define selection and representation mechanisms that could widen the range and raise the quality of members on the board and, thereby, strengthen ICANN’s perceived legitimacy. However, some critics argue that the board member selection mechanisms are vulnerable to capture by the board itself, leading to a narrowing of representation. The structure attempts to respond to concerns about ICANN’s processes by defining steps to increase the specificity, transparency, and accountability of ICANN’s processes.

Whether this new structure and these new processes will enable ICANN to achieve the perceived legitimacy that it has so far failed to attain can be determined only through the practical experience of the coming years.

Summary of the Alternatives

The six alternative approaches to achieving an ICANN that is perceived as the legitimate steward of the root are summarized in Table 5.1. They are characterized along two dimensions. The first is the breadth of ICANN’s role—broad or focused. The second is the breadth of its community of stakeholders—broad or narrow.

5.2.5 Conclusions and Recommendation

The discussion of alternatives in Sections 5.1 and 5.2 leads to four observations. First, the Department of Commerce has expressed the U.S. government’s intention to complete privatization of DNS governance by transferring its stewardship role to ICANN by 2006, conditional upon ICANN’s satisfying certain pre-conditions. Second, the 2005 WSIS meeting might produce a proposal for a private, non-governmental organiza-

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

tion designed to assume certain Internet governance responsibilities. However, as of March 2005, whether such a proposal would in fact be presented and what form it would take were not known. Third, evaluation of any organization proposed by WSIS in late 2005 as a DNS steward would face practical difficulties: It could be done only on the basis of the proposed organization’s design, whereas ICANN will be evaluated on the basis of its record. And it might not be possible to complete an evaluation before the intended transfer of stewardship to ICANN in 2006. Fourth, the outcome of implementing ICANN’s 2003 reform and other ICANN changes may or may not result in the fulfillment of the DOC’s requirements.

These observations suggest three conclusions.

Conclusion: If ICANN satisfies the Department of Commerce’s requirements and is generally perceived to be a legitimate manager of the DNS in the view of a substantial majority of its constituencies, and if no preferable alternative results from the 2005 WSIS meeting, the U.S. government is highly likely to transfer its role as steward of the DNS to ICANN during 2006.

Conclusion: Any private, non-governmental organization proposed as a result of the 2005 WSIS meeting is likely to be considered by the Department of Commerce for DNS stewardship only if ICANN fails to satisfy the DOC’s requirements.

Conclusion: If ICANN’s reforms are not successful and if the 2005 WSIS meeting does not propose an organization to assume DNS stewardship that is acceptable to the U.S. government, the likely outcomes will be a continuation of the Department of Commerce’s stewardship role and a basic reconsideration of how DNS governance should be organized.

A transfer of stewardship from the DOC will leave ICANN (and another organization if stewardship is kept separate) without the benefits and controls that the DOC has provided. It independently reviewed ICANN’s recommended decisions, regularly oversaw ICANN’s performance subject to the sanction of non-renewal of its MoU, and implicitly protected it from attempts by other governments and organizations to gain control of or strongly influence ICANN’s decisions. If the DOC does transfer its stewardship either to ICANN or to another private body, how will these benefits and controls be provided?

Conclusion: Without additional protection, legitimacy based on the “consent of the governed” would be the only basis for ICANN’s contin-

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

ued authority and its ability to resist inappropriate pressure from governments and other powerful interests. Without additional oversight, final responsibility for satisfying the needs of its constituencies in an equitable, open, and efficient manner would lie solely with its board.

Recommendation: Before completing the transfer of its stewardship to ICANN (or any other organization), the Department of Commerce should seek ways to protect that organization from undue commercial or governmental pressures and to provide some form of oversight of performance.

5.3 OVERSIGHT AND OPERATION OF ROOT NAME SERVERS

Issues: Is there a need for greater oversight of the root name server operators? If so, how might it best be conducted? Should there be a formal process for replacing root name server operators? Should the root name server operators be compensated for their service, and if so, how?

The root has functioned well as the shared responsibility of a group of 12 diverse, autonomous, informally coordinated, and independently funded operators (see Table 3.1). Many observers believe that the diversity and autonomy have been strengths, reducing vulnerability to single point failures. Yet, other observers feel that the DNS and the Internet have become too important to the global society and economy to permit such a crucial system to continue to operate without the oversight of an organization responsible for its continued health—technical, operational, and financial.

The tension between these two views—diverse autonomy versus central oversight—leads to several different potential approaches to the issues identified above. In this section, the current situation is first reviewed and evaluated and then four alternatives are similarly described and reviewed. The committee’s conclusions and recommendations follow a comparison of the four alternatives.

5.3.1 Current Situation: Diverse Autonomy

Description

The effective daily operation of the root name servers, described in “The Root Name Servers” in Section 3.3.2, lies squarely in the hands of the root name server operators. The operating organizations have taken on the responsibility voluntarily, are not compensated by users for their base operations (although all are subsidized by their home institutions or out-

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

side contributors, and some receive payments from operators of their anycast satellites47), and are self-regulating through extensive and continuous intragroup coordination.

Although ICANN’s MoU with the DOC48 assigns it the responsibility to manage the root name server system, its authority, as noted in “Selecting the Root Name Server Operators” in Section 3.3.3, has not been sufficient to enable it to manage or even regulate the root name server operators directly. The recent extension of the MoU places emphasis on ICANN collaborating with the DOC on “operational procedures for the root name server system, including formalization of relationships under which root name servers throughout the world are operated and continuing to promote best practices used by the root system operators.” 49 To increase its authority, ICANN has established the DNS Root Server System Advisory Committee,50 has sought to enter into formal agreements with each of the 11 other root name server operators,51 and has prepared a draft “Memorandum of Understanding Concerning Root Nameserver Operation.”52 However, it has thus far been unable to complete an agreement with any of the operators. This is not surprising since it is likely that the operators do not expect to receive benefits that would compensate for the additional obligations they would be expected to assume to ICANN or, through it, to the DOC. In addition, many operators are subsidiary organizations within larger U.S. and foreign academic, commercial, or governmental entities, which themselves may not wish to incur the obligations and assume the liabilities that would come with such an agreement.53 Indeed, it is diffi-

47  

See Box 3.1 for a discussion of anycast satellites of root name servers.

48  

“Memorandum of Understanding (MOU) Between ICANN and U.S. Department of Commerce,” November 12, 1998, available at <http://www.icann.org/general/icann-mou-25nov98.htm>.

49  

“Amendment 6 to MoU Between ICANN and U.S. Department of Commerce,” September 16, 2003, available at <http://www.icann.org/general/amend6-jpamou-17sep03.htm>. See also DOC, “Department of Commerce Statement Regarding Extension of Memorandum of Understanding with ICANN,” September 16, 2003, available at <http://www.ntia.doc.gov/ntiahome/domainname/agreements/sepstatement_09162003.htm>.

50  

For a description of its responsibilities and activities, see <http://www.icann.org/committees/dns-root/>.

51  

ICANN operates the L root name server itself.

52  

The draft memorandum of understanding is available at <http://www.icann.org/committees/dns-root/model-root-server-mou-21jan02.htm>.

53  

As the then-president of ICANN, Stuart Lynn, noted “… some organizations that sponsor a root name server operator have little motivation to sign formal agreements [with ICANN], even in the form of the MoU that is now contemplated. What do they gain in return, except perhaps unwanted visibility and the attendant possibility of nuisance litigation? They receive no funding for their efforts, so why should they take on any contractual commitments, however loose?” “President’s Report: ICANN—the Case for Reform,” February 24, 2002, available at <http://www.icann.org/general/lynn-reform-proposal-24feb02.htm>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

cult to see how ICANN could induce the operators to sign the “Memorandum of Understanding Concerning Root Nameserver Operation” in the absence of a very attractive quid pro quo. Thus, although ICANN has been assigned the responsibility for “formalization of relationships” among the autonomous root name server operators, it currently has little ability to convince the operators to agree to a stronger ICANN role.

Evaluation

Fortunately, the current operators have operated the system successfully and without major incident up to now, despite the enormous and somewhat unanticipated rate of growth in demand for root name service since the mid-1990s when usage of the Web took off, and despite at least one malicious attack54 on the system. Recently, through the voluntary adoption of anycast technology (see Box 3.1), the operators have effectively multiplied the number of root name servers severalfold, reducing the vulnerability of the system to denial-of-service attacks, improving the global accessibility of the root, and moderating the political pressure for relocation of the core 13 root name servers.

The root name server operators assumed their responsibilities and, with a modest number of changes, have successfully operated within the context of Internet culture that favors informal, voluntary, and non-bureaucratic institutions run by technical specialists with primarily altruistic motives. In addition, advances in computer technology and the ready availability of free name server software have kept the cost of operating root name servers relatively low,55 especially when run as an adjunct to other, larger computer operations, as most of them are.

Nor would it be easy to change this situation without the agreement of the operators. Their incumbency and financial independence protect their responsibility and authority, and their informal, collegial relationships serve to strengthen their power as a group. Furthermore, although they do not receive direct financial compensation for their service, they all receive intangible benefits that, together with their fear of potentially destabilizing change in a system that is working well, are evidently suffi-

54  

On October 21, 2002, a distributed denial-of-service attack was launched against the 13 DNS root name servers. For more information on the impact of the attack, see <http://www.caida.org/projects/dns-analysis/oct02dos.xml>.

55  

According to discussions in June 2004 with Kurt Erik Lindqvist, managing director of Autonomica AB, which operates i.root-servers.net, the average annual cost of operating an independent root server, including the costs of multiple anycast satellite servers, is about $1 million. However, other root servers are operated as adjuncts to already well-provisioned secure Internet sites, requiring a minimal incremental expenditure on the order of tens of thousands of dollars annually.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

cient to support their continued activity. In the absence of strong justification, it appears that they are not inclined to favor a change in the current state.

But despite that fact that the current arrangement is functioning well, it might run into difficulties if for some reason the root name servers’ performance deteriorated or some of the operators resigned. Moreover, ICANN is obliged under the MoU to try to take a more formal role in root name server operations. Consequently, it is useful to consider the range of alternatives there might be for operating the root name server system and to see if they might offer advantages over the current arrangement, as well as in meeting ICANN’s MoU obligation.

5.3.2 Alternatives

Two alternative models for structuring management of the operations of the root are (1) funding and regulation and (2) a competitive market. They are described and evaluated below. A third, hypothetical possibility—distributing the root zone file—is here raised by the committee as a means of opening a different kind of approach for consideration. A fourth alternative would be for the DOC to release ICANN from its MoU requirement that it formalize relationships with the root name server operators.

Alternative A: Funding and Regulation
Description

Under alternative A, ICANN (or a successor organization) would acquire the means to assume responsibilities for the root name server system. As noted above, the most likely source of authority for ICANN—as a non-governmental body—would be financial. If funds were available to cover all or a significant portion of the operating costs of the root name server operators, ICANN might be in a position to use its financial authority to do some or all of the following regulatory tasks:

  • Establish minimal performance standards for the root name server operators.

  • Support the implementation of a real-time performance monitoring system for each operator and the system as a whole, perhaps based on the system under development by the Reséaux IP Européens Network Coordination Centre (RIPE NCC).56

  • Monitor the performance of the root name server system.

56  

See <http://dnsmon.ripe.net/>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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  • Enforce performance standards by adjusting compensation to the operators according to the level at which they performed.

  • Require performance improvement of operators that do not achieve minimum levels of root name server performance that would be enforced through cut off or reduction of compensation.

  • Remove operators whose performance does not meet minimum required levels despite requests and reduced or eliminated payments.

  • Identify and qualify new operators to replace removed or resigned operators.

  • Use the contingent provision of additional funding to provide incentives for the operators to achieve higher performance levels and introduce new services.

Evaluation

If it performed most or all of those tasks, ICANN would be the central overseer of the root name server system with full responsibility and authority for its reliable and effective operation. It could establish a performance-monitoring system and use financial rewards and punishments to maintain and improve performance. Should change in an operator or in operations be required, ICANN would be in a position to bring it about. ICANN would, in fact, be carrying out natural responsibilities of the registry for the root (see alternative C in Section 5.2.4).

ICANN’s capabilities as a monitor and decision maker would strongly influence the performance of the root name server system. If it had capable staff, excellent system understanding, and a knowledgeable board, it could make timely and effective decisions. However, should any of those conditions not apply, its influence could in fact be detrimental to the performance of the root name server system.

Moreover, this alternative depends on the operators responding to financial incentives. Many might, but it is clear that not all of them would. There is some possibility of a significant number of them dropping out if the alternative were additional controls from ICANN (or anyone else), and a change in a number of root server operators at the same time might be destabilizing. In addition, the dropouts could form an alternative root, which could be further destabilizing.

The three U.S. government agencies that run root name servers, for example, would probably not legally be able to give up their autonomy in exchange for a financial inducement, especially from a private organization. They would have to be replaced by non-governmental organizations, and that would probably require the agreement of the U.S. government. The relevant elements of the U.S. government might, in turn, be reluctant to agree for fear of thereby reducing overall stability.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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Nor are the funds necessary for this approach available within ICANN’s current budget. They would have to be incorporated into a future budget and could require a corresponding increase in ICANN’s funding from registries and registrars. (This would be available under “Alternative C, ICANN as Registry for the Root,” in Section 5.2.4.) Another option would be to allocate to this purpose a portion of any funds received from the procedure for selecting new TLDs through auction or other processes, as described in “What Selection Process Should Be Used?” in Section 5.4.2. below.

An alternative proposal would be to charge ISPs and other users an annual fee for access to the root, which is similar to what is done today by the root server operators when the cost of an anycast satellite is shared by the ISPs and users that will benefit from it. (However, there is no practical way that such a fee could be enforced, except through the voluntary agreement of the ISPs and other users.)

Alternative B: Competitive Market

The second alternative would be to create a competitive market for root service. To the committee’s knowledge, competitive service of the same root has not been formally proposed elsewhere. However, since increasing competition in the provision of DNS services is one of the stated goals of the DOC, the committee has created an example of what a straightforward approach to such competition might mean for root name services.57 A less straightforward example, which is actually being implemented, is also described.

B1: Competing Root Name Server Systems

In the most straightforward form of market for root name service, competition would entail having two or more distinct groups offering access to the authoritative root zone file. To avoid the confusion that could arise with multiple root zones, each of the operator groups would have to agree to offer access to the same root zone file, which would be provided to each of them at the same time by the authoritative source, say, VeriSign for ICANN.58 Every ISP, intranet, or other organization running a full-

57  

The recent sixth amendment to the memorandum of understanding includes the statement, “The Department reaffirms its policy goal of privatizing the technical management of the DNS in a manner that promotes stability and security, competition [emphasis added], coordination, and representation.” See “Amendment 6 to MoU Between ICANN and U.S. Department of Commerce,” September 16, 2003, p. 2.

58  

The authoritative root zone file is currently distributed by VeriSign, which operates the hidden primary. However, at some future time, ICANN may take over this function itself.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

service resolver on the Internet would have to contract with one (or more) of the competing root server operators, which would charge them a monthly or yearly subscription fee that could be based on volume of queries or, more practically, on how many IP addresses the organization had assigned to it. A technical means of ensuring that only subscribers could gain access to an operator’s root name servers would be required.

Evaluation. The committee was unable to conceive a version of this full competitive market for root name service that would be both technically and operationally feasible and beneficial enough to displace the current system.

There are two major technical difficulties. First, the communication and computation overhead of ensuring that only subscribers could gain access to the operators’ servers could be a substantial and undesirable load on the root name server system, with the servers spending significantly more effort checking permissions rather than answering queries. Second, there is the difficulty that arises because the content of the root zone file includes the IP addresses of the root name servers. If there is one authoritative root zone file, then there is only one set of IP addresses that it can contain and, therefore, only one set of root name servers. Even if these technical problems could be overcome, two major operational problems would remain.

The first operational problem is that every system that contains a full-service resolver would need access to the root zone. Thus, every laptop and home system so equipped (and there are many) would require a contract with one of the competing root name server systems or would have to change to a stub resolver and contract with an ISP for that service. This, in turn, would cause problems for traveling users who typically encounter and would have to contract for root service from multiple different ISPs in the course of their travels.

The second operational problem is that the switchover to operation of a competitive system would have to take place in a short time, unless the current set of operators were the default choice, to which competitors would likely object. That means that every ISP, organizational intranet, and owner of a full-service resolver would have to sign up for service with one of the competitors. Technically, the root name server Hints File in every resolver/name server on the Internet would have to be changed over in a short time to list the IP addresses of the root name servers of one of the providers.

Even if these technical and operational difficulties could be overcome, there are two pragmatic difficulties that the changeover to a full competitive market for root name service would have to overcome.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

First, a fee would be introduced for what is currently a free good. That is only likely to be accepted if it is accompanied by significantly improved performance on dimensions that its customers care about and if the root zone file can be kept secure from all but subscribers. But there has been no suggestion that dissatisfaction with current service is such that any level of “improved performance” would be willingly paid for.

Second, the incumbent operators would have a great advantage, since they have the facilities, the skilled staff, and the operational experience that newcomers would have to develop. However, that might not be a problem for companies that already run large DNS name servers, such as Neulevel or UltraDNS, or for national governments that wanted to establish their own system of local name servers.

These potential difficulties, which mean that the probable costs would significantly outweigh the prospective benefits, effectively eliminate the approach of a full competitive market for root name service. However, there is another approach that is already developing.

B2: Competing Providers of Anycast Servers

The current market for anycast satellite servers is a less direct form of competition for root name service. The competitive providers are a number of the root name server operators who compete on price, service level, and other features to attract customers, which are ISPs or others that want to have an anycast satellite server nearby. The result of the development of this market has been a rapid multiplication and broadened distribution of the number of servers of the root zone file.

Evaluation. Model B2 has shown itself to be a demonstrably feasible path to reducing the geographically uneven distribution of response times and to increasing the reliability of the root name server system without incurring the technical, operational, or practical problems of the model first described. Thus, it provides most of the benefits of model B1, “Competing Root Name Server Systems,” without its difficulties.

Alternative C: Distributed Root Zone File
Description

A third alternative, which might avoid the difficulties of regulation or competing root name servers, would be for ISPs and organizational intranets to obtain copies of the root zone file from ICANN (through VeriSign’s distribution server) and make local name servers authoritative

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

for the root zone. Something like this is, in fact, done today through the caching of queries by ISPs and through the possibility of an ISP obtaining an anycast satellite of one of the root name servers.59 However, in this alternative, the intention would be to formalize this practice and have ICANN require every ISP or intranet to subscribe to the authoritative root zone file. The current public root name servers could be retained for use by small and less technically skilled ISPs and intranets, but would be scaled down to serve the smaller load.

Evaluation

The wide distribution of the root zone file and root name servers would significantly enhance the security of the root and the reliability of its operation, in much the same way that anycast satellite sites already have done, but to an even greater extent. Furthermore, the effects of erroneous or malicious queries would be limited to the ISP or intranet from which they originated, and the ISP would have a strong incentive to find and eliminate their sources.

Some fear that widespread distribution of the root zone file and the probable large numbers of poor local configurations and irregular updating of the local name servers would cause havoc at worst, and poor local service at best. The concern is that widespread availability of the root zone file would encourage the offering of alternative roots, from which some TLDs had been removed or to which additional TLDs had been added. The latter problem can, however, be partially addressed through DNS Security Extensions (DNSSEC; see Section 4.2), which would detect, although not prevent, unauthorized changes to the root zone file. What actions would be taken if a change is detected would have to be agreed in advance and enforced through an agreement with the ISPs. The irregular updating problem might be resolved through the use of a distributor-driven process like that currently used to update the secondary root name servers.

If it could not be ensured that organizations (especially ISPs, which in turn have customers) would keep their copies of the root zone file up-to-date and uniform, the approach of having a distributed root zone file could cause a decrease in the integrity of the DNS, which relies on the root zone file being consistent across the Internet.

59  

In fact, the root zone file is available for download at <ftp://ftp.internic.net/domain/root.zone.gz>, but there is no encouragement to use it.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×
Alternative D: DOC Relaxes MoU Requirement
Description

The DOC could relax its requirements for ICANN if it accepted the success of the current diverse, autonomous, self-regulating root name server system instead of viewing it as unsatisfactory because it is subject to neither formal regulation nor the discipline of the market. In place of its cooperation with the DOC on “operational procedures for the root name server system, including formalization of relationships under which root name servers throughout the world are operated,” ICANN could be tasked simply to serve as a facilitator, if asked, of the voluntary cooperation among the root name server operators.

Evaluation

The DOC’s relaxation of its requirements for ICANN would, in effect, legitimate the current de facto relationship between ICANN and the operators and relieve the pressure on ICANN to take on authority and responsibility that the operators have not yet shown themselves willing to cede.

Summary of the Alternatives

The current state and the four alternatives for oversight of the root name servers are summarized in Table 5.2. It compares them on two dimensions: first, whether the root name server operators are under formal or informal oversight by ICANN, and second, whether there is one set of root name server operators or multiple sets.

TABLE 5.2 Alternatives for Root Name Server Oversight and Operation

Root Name Servers

Oversight

Formal

Informal

One set of operators

A. Funding and regulation

(Current situation—diverse autonomy)

B2. Competing providers of anycast servers

D. DOC relaxes MoU requirement

Multiple operators

C. Distributed root zone file

B1. Competing root name servers systems

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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5.3.3 Conclusions and Recommendations

Conclusion: The effective daily operation of the root, and therefore of the DNS and the Internet, lies squarely in the hands of the root name server operators. Although ICANN has been assigned responsibility for the stability and security of the root name server system by the Department of Commerce, its authority has not been sufficient for it to manage or even regulate the root name server operators directly.

Conclusion: The committee commends the operators of the 13 root name servers for their reliable and efficient provision of critical root name service as the Internet has undergone rapid growth in the numbers of its users and providers.

Conclusion: The committee believes that greater oversight of the operators will not be necessary so long as they operate effectively and reliably and continue to improve the root name system’s reliability and capability.

Conclusion: The committee believes that in the longer term it is desirable for there to be more formal coordination of the operators and that ICANN would be the most appropriate organization to assume the coordination role.

Recommendation: ICANN should work with the root name server operators to establish a formal process for replacing operators that directly engages the remaining root name server operators.

For example, should one of the current operators withdraw, ICANN could convene the remaining root name server operators as a selection committee to recommend a replacement operator to ICANN’s board. The board could after appropriate consideration (and after approval by the DOC or a future stewardship organization, if any) then direct IANA to enter the address of the new operator in the root zone file.

Conclusion: Any central source of funds to compensate all the root name server operators for their services is likely to carry an unacceptable regulatory or control role for the funding organization and reduce the diversity of support that is one of the strengths of the current arrangement.

Recommendation: The present independent funding arrangements for the root name servers are advantageous and should continue, because the multiplicity of sources contributes to the resilience, autonomy, and diversity of the root name server system.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

5.4 REGULATION OF GENERIC TOP-LEVEL DOMAINS

Issues: Can and should new gTLDs be added? If so, how many new gTLDs should be added, and how fast? What types should they be, and how should they and their operators be selected?

ICANN has faced a demand for the addition of gTLDs since its establishment (see Section 2.7). At that time, the demand for .com addresses was growing very rapidly. Some applicants that were unable to obtain their preferred domain names within .com or .net called for the creation of new TLDs in which they might register. Potential registry operators, seeing an opportunity for profit in the rapidly growing market for domain names, added their strong voices to the cry for more TLDs.

Although the demand for domain names is not growing as rapidly as it did in those very early days, there remains a strong interest in adding gTLDs to the root as well as a strong counterbalancing interest in moderating such additions.

In response to the pressure to add new gTLDs and to a requirement in its 2003 MoU with the DOC, ICANN agreed60 to deliver by September 2004 a comprehensive evaluation of:

  • “The potential impact of new gTLDs on the Internet root server system and Internet stability” and

  • “Potential consumer benefits/costs associated with establishing a competitive environment for TLD registries.”

It also committed to:

  • “Creation and implementation of selection criteria for new and existing TLD registries, including public explanation of the process, selection criteria, and the rationale for selection decisions,” and

  • “Recommendations from expert advisory panels, bodies, agencies or organizations regarding economic, competition, trademark, and intellectual property issues.”

To fulfill this commitment, ICANN at its October 2003 meeting launched a strategic initiative to allow new generic top-level domains.61 The initiative comprises two stages intended “to move to the full global-

60  

Reported in ICANN board resolutions at the ICANN meeting in Carthage, Tunisia, October 31, 2003, available at <http://www.icann.org/announcements/advisory-31oct03.htm>.

61  

ICANN, “ICANN Launches Broad Strategic Initiative for New Generic Top-Level Domains,” announcement, October 31, 2003, available at <http://www.icann.org/announcements/announcement-31oct03.htm>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

ization of the market for top-level domains.” One stage is a comprehensive evaluation that includes:

  • An assessment of technical standards to support multilingual TLDs,

  • An assessment of the introduction of competition into the TLD market and of possible business models for the TLD manager–ICANN relationship,

  • A study of intellectual property issues involved in the introduction of new TLDs,

  • Reports on technical stability issues related to the introduction of new TLDs, and

  • A review of consumer protection issues.

These studies were carried out by independent outside organizations62 as well as by ICANN’s Security and Stability Advisory Committee.

The second stage was an expedited process that was intended to add a new group of gTLDs before the end of 2004. In this process, each of these gTLDs would be sponsored by a non-profit organization representing a specific community, whose members would be the only ones eligible to register domain names in it.

Thus, the question of adding gTLDs is timely and open to careful examination. Although ICANN has accepted the view that new gTLDs should be added and is employing one specific means for doing so, it is useful for a full understanding of the issues involved to take one step back and consider first the fundamental questions: Should new gTLDs be added to the root zone and, if so, how many and how fast? If new gTLDs are to be added, what types should they be, and how should they and their operators be selected?

5.4.1 Should New gTLDs Be Added? If So, How Many New gTLDs, and How Fast?

An increase in the number of gTLDs would have technical, operational, economic, and service consequences that would affect domain name registrants, registries, registrars, and Internet users generally. Thus, responsible decisions about gTLD additions should take into account the different potential effects on the several constituencies. In contrast, the public discourse and controversy have often been framed narrowly—

62  

On August 31, 2004, ICANN published a report, prepared for it by Summit Strategies International, entitled “Evaluation of the New gTLDs: Policy and Legal Issues.” The report touches on the second and third topics in the list of studies for a comprehensive evaluation. It is available at <http://www.icann.org/tlds/new-gtld-eval-31aug04.pdf>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

sometimes considering only one type of effect on one constituency. Furthermore, the arguments are often based on assumptions, rather than evidence, and the assertions of one side are often vigorously disputed by the other side.

The issue is addressed here broadly in terms of effects as well as constituencies affected, but for simplicity, the multidimensional arguments for and against new gTLDs are clustered into two groups: (1) technical and operational performance issues and (2) user needs and economic issues. Where relevant evidence is available to support or contradict an argument, it is reported.

(Note: The amount of space devoted to each argument does not reflect the committee’s judgment either of its importance or of its credibility. Rather, it is a consequence of the material available and the space required to explain it.)

Technical and Operational Performance Issues
Arguments in Favor

As noted in Chapter 3, the root zone file is very small, comprising data for 258 TLDs and the 13 root name servers—just over 78 kilobytes in total. It is searched on the root name servers about 8 billion times per day. The committee did not find any purely technical reasons that the root name servers could not provide the same level of response with a much larger root zone file. Indeed, the ability of the .com name servers to respond to billions of queries a day against the .com zone file, with more than 30 million entries, is a demonstration of the technical capacity that could be applied to the root zone, if necessary.

Nor are there any fixed limits in the design of the DNS on the size or the rate of addition of domains at any level in the DNS hierarchy. Any such limits would arise from practical matters of implementation and operation.

Moreover, additions have already been made to the root zone—both the seven gTLDs added in 2000 and the numerous ccTLDs added during the mid-1990s, with no noticeable degradation of root name server performance.

Arguments Against

However, there are operational and administrative issues that suggest practical constraints on, at least, the rate of addition of new TLDs to the root zone file, and potentially as well, on its total size. Of concern to some members of the technical community are the number and the rate of changes to the root zone file—both at the time of creation of a TLD (as a new entry into the root zone file) and in support of subsequent changes

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

(as a modification of an existing entry to accommodate a changed IP address, for example). Errors or corrupted entries in the root zone file pose a greater risk of harmful consequences for the DNS and Internet than do analogous mistakes made elsewhere in the DNS hierarchy. An increase in the number of root zone file updates increases the probability of inadvertent errors and makes it more difficult to detect them in a timely manner.

Yet, as discussed in Chapter 3, the design of the DNS makes heavy use of address caching. This means that errors at the root will not affect a significant number of users immediately, but rather will gradually be disseminated as the caches time out. Errors at the root zone, while certainly undesirable, should not have catastrophic consequences and should be able to be caught before they do much significant damage.

The administrative procedures for approving additions of new gTLDs (see “Selecting New TLDs” in Section 3.4.3) have been much more intensive and extended than those, for example, for adding a new second-level domain to one of the gTLDs. This has been for technical reasons—to ensure that the gTLD’s name server operations will meet Internet standards; for consumer protection reasons—to ensure that registrants in the new gTLD will have reasonable assurance of a competent, reliable, and continuing service; and because of the need to deal with a variety of contending legal and commercial interests. Should a high level of scrutiny be required for approving additions of all new gTLDs and the ongoing workload increase as a consequence of the additional gTLDs, then the rate of buildup of an adequate administrative staff would also set a bound on the rate of addition of new gTLDs.

Committee View

In light of these considerations, several members of the committee hold the view that an extremely cautious approach should be taken toward additions to the root zone file. Their preference would be for no additions at all. And they would certainly limit new gTLDs to those that can be shown to meet an important, unsatisfied need. Furthermore, they think that a process for monitoring root zone operations capable of detecting signs of degradation or instability and of acting to correct their causes must accompany any process for regular addition of new gTLDs.

Taking into account those views, the committee agreed that if additions are to be made to the root zone, it would be prudent to limit their rate. After balancing the various considerations and the differing views of its members, the committee concluded that the addition of tens of new gTLDs per year for several years would be unlikely to jeopardize the technical or operational stability of the DNS. The committee accepted that additions at a faster rate would unacceptably increase the risk at present.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

However, further refinement of the practices for making and distributing root zone file changes (as discussed in “Maintaining the Root Zone File—VeriSign” in Section 3.3.3), the addition of administrative capacity to ICANN, and further closely monitored experience with gTLD additions could provide the basis for larger-scale annual increases in the future, should the demand be shown to exist.

Conclusion: Considering technical and operational performance alone, the addition of tens of gTLDs per year for several years would pose minimal risk to the stability of the root.

User Needs and Economic Issues
Arguments in Favor

A principal argument for adding new gTLDs is that only by opening the market for gTLD registry services would a true identification of domain name registrant (user) needs be possible, because only then would entrepreneurs and other innovators have the opportunity to offer a range of gTLDs to potential registrants. Two indicators of the potential demand for new gTLDs are the more than 3 million registrants in .info, the million or so registrants in .biz, and the more than 100,000 registrants in alternate TLDs offered by new.net, which are readily accessible from only 25 percent of the Internet (see “Unique Characteristics” in Section 3.3.1).

While the advocates of adding gTLDs do not claim to know when or if the user demand for new domains would be completely filled, they accept the inevitability of some new gTLDs failing. In their view, such failures would be a reasonable price to pay for clarifying and meeting user needs, many of which may be latent—unrecognized even by the potential beneficiaries. Advocates of this position, however, generally acknowledge that to protect domain name registrants in new gTLDs, registry contracts should require zone file escrow and agreements with other registries to assume responsibility in case a gTLD were to fail.

One question that arises in this context is whether new gTLDs will provide new users opportunities to register their desired (second-level) domain names or whether gTLD proliferation will simply result in existing users registering similar domain names in all gTLDs for which they are eligible. In the latter case, for example, .biz would simply replicate .com, duplicating registration and administrative costs without any associated benefits.63

63  

Indeed, there may be significant costs in addition to those associated with registering in multiple domains as cybersquatters expend resources in order to acquire names that they may later sell for prices that substantially exceed the costs of registration.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

At least as judged by the experience of the operation of the .biz domain, there is only a small amount of duplication. To begin with, no more than a very small fraction of .com registrants have chosen to register the same domain name in .biz, since in February 2005 there were more than 33 million names registered in .com but just over 1 million names registered in .biz.64 Moreover, even when the same name has been registered, the identity of the .biz and .com registrants is the same in only 25 percent of those cases, according to an earlier study.65 Thus, the .biz gTLD has, in fact, offered a substantial number of new registrants opportunities to register their desired domain names, with proportionately little duplication of .com domain names.

A demand for additional gTLDs could arise from the implementation of internationalized domain names that use non-Roman scripts (see Section 4.3). Although much of the early activity has been in registering second-level domain names in non-Roman scripts in existing TLDs, that usage could develop into a demand for gTLDs in non-Roman scripts. This demand could be quite large, given that the number of non-English-speaking users of the Internet is already very large and is growing rapidly.

A new gTLD (e.g., .health) might induce additional value-added services at the second level (e.g., example.health) that would be more accessible than the currently possible third-level services (e.g., example.health.com ) or second-level services (e.g., examplehealth.com).

Another reason for favoring the addition of gTLDs is economic. First, it would open the opportunity for new participants to enter the registry services market, promoting both price and non-price competition (which includes diversity in naming methods) among registries. The August 2004 ICANN report on the policy and legal issues of new gTLDs noted that “the ICANN community now has several registry operators, as opposed to just one provider, which is [sic] able to operate a global registry of significant scale…. Today the three companies [VeriSign, Afilias, and NeuLevel] compete for the ability to provide registry services to new and existing TLDs, both in the gTLD and ccTLD markets.”66 Second, it would encourage innovation. According to the report, “the new gTLDs have had an impact beyond their size or market share … in terms of innovation.”67

Furthermore, a steady and foreseeable supply of new gTLDs could reduce the incentive to cybersquat by lowering the scarcity value of spe-

64  

See <http://www.zooknic.com/Domains/counts.html>, accessed on June 18, 2005.

65  

See Jonathan Zittrain and Benjamin Edelman, “Survey of Usage of the .BIZ TLD,” available at <http://cyber.law.harvard.edu/tlds/001/>, accessed July 22, 2002. This estimate is based on a random sample of 823 .biz domain names, where the identities of registrants were matched using zip codes, name server second-level domains, e-mail addresses, or some combination thereof.

66  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 111.

67  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 111.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

cific names and making it more costly to hoard names. Thus, the potential victims of cybersquatters may save money should new gTLDs be added.

New gTLDs would also enable the establishment of additional restricted name spaces, whose registrants would be authenticated by the registry to be members of a specific class and who might also have to accept specified rules of conduct. These would be like the existing sites .edu (primarily for accredited institutions of higher education), .pro (for professionals), and .museum (for the museum community). Possibilities include .kids (for kid-safe sites) and .health (for qualified health care providers). In addition, many organizations, especially medium and large ones, may want their own gTLDs, enabling their computer services to assume responsibility directly for functions they currently must acquire and pay for from TLD registries. For example, IBM might prefer to own and operate the .ibm TLD, rather than rely on the .com registry for service for ibm.com.

Arguments Against

There are strongly held opinions against opening the market in gTLDs as well.68

On the question of user needs, opponents of gTLD addition contend that the existing selection of gTLDs (and ccTLDs that act like them—see “Recharacterizing TLDs” in Section 3.4.1) have met registrant needs quite well and are capable of continuing to do so. They perceive few signs that many prospective domain name registrants have an unmet need for new gTLDs that could not be satisfied in one of the available second-level domains. Whatever truly unmet needs there might be are not sufficient, in their view, to justify even a small threat to the reliable operation of the DNS. The August 2004 ICANN report on the policy and legal issues of new gTLDs notes that, despite the entry of the new gTLDs, .com, .net, and .org still have more than 93 percent of the registrations in all gTLDs.69 It concludes that “.com remains the TLD of first choice for a majority of gTLD registrants, including new registrants”70 and that a “choice of TLDs has thus far been unable to overcome the advantages the .com TLD enjoys.”71 Nonetheless, the report concludes that “the new gTLDs presented

68  

See, for example, Tim Berners-Lee, “New Top Level Domains Considered Harmful,” April 30, 2004, World Wide Web Consortium, Design Issues, available at: <http://www.w3.org/DesignIssues/TLD>.

69  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 96.

70  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 109.

71  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 110. Nonetheless, the report notes the views of some members of the “non-commercial community” who believe that, although overcoming the advantages of .com would be difficult, it would not be impossible.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

registrants with significantly greater choice, at least in terms of initial registration.”72 Further, the report concludes that “there are indications that a respectable number of the new gTLD registrations have attracted new users to the DNS, and that these new registrations are being actively used.”73

From the perspective of the user seeking a site through guessing or relying on a possibly faulty memory, the addition of gTLDs increases the number of possible domain names to try. For example, is it “example.com” or “example.biz” or “example.info”? This is already a problem, but it could be exacerbated by the addition of new gTLDs.

There are economic counterarguments as well. Trademark holders, for example, fear that they would face the possible need to defensively register (to preclude cybersquatting) in all unrestricted gTLDs, incurring an expense that could be substantial, particularly for small organizations and individuals. However, the August 2004 ICANN report concludes that “the start-up mechanisms proved generally effective in protecting legitimate trademark owners against cybersquatting.”74 At the same time, the report notes “a contradiction between … trying to attract new users and uses to the DNS, and allowing trademark holders to claim priority registration of the same names in new TLDs.”75 And it observes that the number of sunrise registrations76 in the new gTLDs that used such a process “has turned out to be much smaller than anticipated.”77

More generally, holders of existing domain names that have built a reputation could find the value of that reputation reduced as similar sites proliferate. For example, the owner of a discount ticket Web site might fear that some of his customers would become confused and unable to remember whether it is “cheaptickets.com” or “cheaptickets.biz” or “cheaptickets.travel” that is known for offering the cheapest tickets.

Furthermore, current registry services stand to lose some of their economic (scarcity) value as a result of the entry of new TLD registry service providers. So trademark holders, the owners of existing sites, and current registry services all fear possible additional costs or losses of value if new gTLDs are added.

Opponents are also concerned that each increment of new gTLDs could be followed by a period of administrative instability, set off by a

72  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 97.

73  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 99.

74  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 79.

75  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 80.

76  

See “Possible Remedies to Conflicts Over Names” in Section 3.5.2.

77  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 81.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

race to register potentially valuable domain names and the flurry of administrative and dispute resolution activity that it induces.

In the extreme, if unlimited additions were permitted (say, for example, .ibm, .ge, .sony, .siemens, and so on), the root zone could become comparable to the .com gTLD, which would seem to have uncertain benefits, while threatening considerable upheaval in the technical operations of the DNS and administrative processes of ICANN. However, the imposition of a restriction on the allowable number and rate of additions, as suggested by technical and operational considerations, would alleviate this risk.

Committee View

After taking into account the user needs and economic benefits arguments for and against potential gTLD additions, the committee remained divided on the addition of new gTLDs. Some members felt strongly that on balance those needs and benefits were not great enough to risk the technical and operational stability and reliability of the DNS. Other members believed that within the limits of tens of new gTLDs per year it was worthwhile to enable some form of market process to be used (with proper safe-guards, discussed below) to determine how extensive the need might be.

Conclusion: Neither the user needs and economic benefits arguments in favor of nor those against additional gTLDs are conclusive.

In addition to the question of whether and how many gTLDs should be added is the question of how often. Thus far, additions have occurred at an irregular and unpredictable pace: the initial group of 8, 7 more in 2000, and up to 10 more in 2004-2005. That uncertainty makes it difficult for current and potential gTLD registries to develop and operate according to reasonable business plans and has the effect of overvaluing new gTLDs (because of the uncertainty of whether and when there will be any further additions). A regular schedule would enable those who lose out one year to anticipate additional chances in the next year, reducing the price they would be willing to pay (in a gTLD auction, for example) were there no certainty about the addition of gTLDs in the near future.

Recommendations

Recommendation: If new gTLDs are added, they should be added on a regular schedule that establishes the maximum number of gTLDs (on the order of tens per year) that could be added each time and the interval between additions.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

Recommendation: Since the effect of continuing increments of new gTLDs on the performance and stability of the root zone is not known, and the consequences of reduced performance and instability can be great, it would be prudent to accompany any process of addition with a process for monitoring and identifying any technical or operational problems the new gTLDs may cause.

Recommendation: A mechanism to suspend the addition of gTLDs in the event that severe technical or operational problems arise should accompany a schedule of additions. It should explicitly specify who has the authority to suspend additions and under what conditions.

Recommendation: A neutral, disinterested party should conduct an evaluation of new gTLDs approximately 1 or 2 years after each set of new gTLDs is operational to make recommendations for improving the process for selecting and adding gTLDs.

As noted in the introduction to Section 5.4, ICANN has included as part of its strategic initiative the need for an evaluation of the additions made in 2000. The committee believes that ICANN should contract with neutral, disinterested parties to conduct such evaluations for every subsequent addition of gTLDs.

5.4.2 If New gTLDs Are to Be Added, What Types Should They Be, and How Should They and Their Operators Be Selected?

If new gTLDs are to be added to the root zone, there remain the questions of deciding which types of gTLDs should be added and which entities should be selected to operate the associated registries.

In some selection processes used in comparable circumstances, what should be added and who should be their operators are considered completely separately.78 In other cases, what should be allocated and to whom it should be assigned have been determined in the same proceeding. In the case of the DNS, both types of approach have been used. When seven new gTLDs were authorized in 2000, ICANN’s selection process combined the choices of the types and the identities of the registries, so that a particular entity was selected as a registry because ICANN favored the type

78  

In radio frequency management, this is referred to as the distinction between “allocation,” which denotes setting aside blocks of frequencies in specific geographic areas for a particular use, and “assignment,” which denotes the award of these frequencies to particular users. Of course, it may be possible to dispense with the determination of the type of new entrant and to limit the process to determining which entrants to allow.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

of service it promised to provide. In contrast, the decision as to which organization would operate .org upon its transfer from VeriSign was independent of the legacy decision to have such a gTLD.

Whatever process is used to make such decisions, it should at a minimum satisfy four fundamental criteria:

  1. Fairness. The process should not favor an applicant or class of applicants over others.

  2. Transparency. The reasons for the outcomes should be clear to all involved.

  3. Efficiency. The process should not place a heavy burden on the applicants or the selection group.

  4. Economy. The process should not impose undue costs on the applicants or the administrator of the selection process.

The discussion that follows provides a context against which to evaluate ICANN’s current round of selections and the process that it is following.

Which Types of gTLDs Should Be Added?

There are three approaches to determining the types of gTLDs. They derive from different views about the desirable structure of the gTLD name space.

Taxonomic/Restricted

The first approach holds that the gTLDs should adhere, as much as possible, to a taxonomic structure. Its adherents believe that such a structure can assist Internet navigation by serving as a high-order directory and that it can channel and bound the addition of gTLDs. In an ideal taxonomic structure, each gTLD would be restricted to members of a specific class, there would be a gTLD for each appropriate class of members, and each possible member would fit into one and only one class.

The current structure of gTLDs is already far from an ideal taxonomy. Although the names of the three largest gTLDs, .com, .net, and .org, imply a restriction to commercial, networking, and non-commercial registrants, respectively, in practice the registries have not enforced such restrictions. Moreover, there is nothing to exclude a Web site having, say, both .org and .edu domain names, even if both were strictly restricted to appropriate registrants. So the best that an adherent to this view could hope for would be that each new gTLD would be restricted to a specific class whose membership could be inferred from the domain name (e.g., names such as .travel, .xxx, .library, and .health).

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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The “taxonomists” favor an extension of the gTLDs only in the restricted form.79 In this case, each new gTLD would need a registry willing and able to enforce the specific restrictions, which can be arduous and severely limit the rate of registration. For example, the .pro registry, which was formed in 2000, began registration only in the spring of 2004. It is limiting its rollout to the rate at which it can gain access to records of registered professionals so that it can identify those that it will permit to have a .pro domain.

Although it is no longer feasible to impose a full taxonomy on the DNS, this approach can strengthen its implicit directory function by ensuring that all new gTLD names clearly identify a restricted class of second-level domains. This is the approach taken by ICANN in adding new gTLDs in 2004-2005 as described below.

If there are benefits to using a tightly controlled taxonomy, there is nothing to stop this from occurring at the second level. For example, there could be a gTLD called .industry, with second-level domains describing various instances of industries: travel.industry, health.industry, automobile.industry, and so on.

Market-determined

The second approach favors allowing the processes of supply and demand to determine how many and which domains are offered, first by the willingness of an operator to offer it (supply) and second by the willingness of those desiring domain names to register in it (demand). Under this approach, it would be up to the gTLD registry to decide whether or not it would restrict registrations to members of a certain group.

To the advocates of this approach, opening a new gTLD and then closing it down because of an insufficient number of registrations would be an acceptable outcome, assuming (as noted above) that zone file escrow and alternate registry provisions could be made to protect domain name holders for some period of time after the closure.

In contrast to the taxonomic/restricted view, the market-determined approach holds that attempting to structure or control the gTLD name space provides little navigational value in a world of search engines and other navigational aids. Many also doubt the taxonomic/restricted approach’s practicality. They believe that a market-driven name space is more flexible and reflective of users’ desires than is adherence to a limiting structure imposed by some authority.

79  

See, for example, Business Constituency, “A Differentiated Expansion of the Names Space,” ICANN position paper, December 2002, available at <http://www.bizconst.org/positions/BCpositionpaperNewGTLDsV2.doc>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×
Regulated

The third approach takes a position intermediate between the first two. It would add new gTLDs, both restricted and not, based on the qualifications and justifications presented by those who propose to run them, on a case-by-case basis. An administrative body, presumably ICANN, would exercise judgment to select which new gTLDs were added and who would operate them. This is effectively the approach taken by ICANN in 2000 when it added seven new gTLDs, selected from the more than 40 applicants because ICANN favored the TLD name and the type of service proposed, as described in “New gTLDs” in Section 3.4.3.

How Should the Operators of gTLDs Be Selected?

The necessity for selection arises when the number of candidates for a resource exceeds the quantity of the resource that is available, when candidates’ qualifications to receive the resource must be validated, or both. Three common forms for the selection process in situations comparable to selection of new gTLDs and their operators are comparative hearings, auctions, and lotteries.

Comparative Hearing

A comparative hearing is an administrative process in which would-be entrants attempt to convince the decision body that they, and their proposed service, are qualified for selection in competition with other candidates. It is the form that has been and is being used by ICANN. Comparative hearings typically feature discretionary entry, merit assignment, and heavy regulation. Such hearings can take into account a large number of factors, draw on a wide range of expertise, offer opportunities to learn from experience, and enable judgment to be employed. Through use of a non-refundable application fee, such as ICANN has required, they can reduce speculative applications and be self-funding.

There are downsides to comparative hearings, however, as they can be subject to capture by interest groups. Furthermore, the real decision process may not be transparent, and thus may be perceived as arbitrary and unfair, especially by the losers. Also, decision quality is highly dependent on staff and decision maker competence, while the negotiation and oversight of contracts can be time-consuming and expensive. In addition, depending on the nature of the process and the stakes involved, application costs can be very high.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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Auction

In the basic auction model, the highest bidder wins, although participation in the auction might be limited to those meeting a minimum set of qualifications. The advantages of auctions are that they are fair and transparent processes that reflect the economic value perceived by applicants, they may be designed to self-fund the process, and they discourage an excessive number of speculative applications. However, the tradeoffs with the auction model are that it tends to favor well-funded applicants (which could be corporations or non-profits) and thus does not necessarily reflect societal value, only economic value.

In principle, auctions could be designed to choose winners on the basis of who can best minimize prices (say, for example, the price of a domain name registration). However, in such cases, it may be impossible to prevent the winning bidder from later claiming (successfully) that changing conditions justify a higher price.

To the extent that in a specific situation social welfare extends beyond economic considerations, auctions, at least in their pure form, become less appealing.

Lottery

Winners in the lottery selection model are determined through a random choice from all entrants, each of which may be required to meet some minimum qualifications in order to participate and would (in contrast to a fund-raising lottery) be restricted to one entry per entity. The biggest advantage of lotteries is their transparency: they are fair and transparent, giving all entrants an equal chance regardless of means. Lotteries can also be self-funding if a charge is made for each “ticket.” Although the cost to a given entrant may be quite small, lotteries can be expensive to society in the aggregate because they can attract a very large number of participants.

Because it can be difficult to determine whether an entry to the lottery is from a distinct qualified entity, a lottery can be gamed by one participant obtaining multiple entries under different “legitimate” guises. Moreover, unless the qualification criteria are very restrictive and carefully vetted, participants may not even have the financial or technical capacity to operate a service if they win, and the winners may simply sell the service to another entity for a significantly greater price. In the latter case, the lottery is turned into an auction, with the proceeds going to the lottery winner rather than the organization holding the lottery.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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Combination Methods

It is also possible to integrate two or three of the basic methods into a variety of combination methods, some of which are described below.

What Selection Process Should Be Used?

There is a widely held view that the process employed by ICANN in 2000 to add new gTLDs was faulty. There is much less agreement about how to improve it, although the elements from which an alternative can be developed are described above. In July 2004, the Organization for Economic Cooperation and Development (OECD) issued a report that describes and compares two of those elements, comparative selection (hearing) and auctions, as means for allocation of gTLDs.80 What follows is a description of several of the alternatives that have been specifically suggested, beginning with the process used in 2004-2005 by ICANN for the next round of additions.

Alternative A: Sponsored gTLDs Selected by Modified Comparative Hearing (2004-2005)

Description. ICANN is using a modified comparative hearing approach to select new sponsored gTLDs. Each new gTLD will be restricted to registrants from a well-defined and limited community and managed by a sponsoring organization with ongoing policy-formulation responsibility for the gTLD. The sponsoring organization will select the registry operator and, to some degree, establish the roles played by the registrars and their relationships to the registry operator.81

The request for proposal, evaluation, and selection processes are modifications of those used in 2000 to select seven new gTLDs. Non-refundable application fees of $45,000 have been charged to cover the costs of the selection process.

The eventual registry agreement will be similar to those entered into by the .museum, .coop, and .aero registries. However, the August 2004 report published by ICANN that evaluated the policy and legal issues of

80  

Working Party on Telecommunication and Information Services Policies, “Generic Top Level Domain Names: Market Development and Allocation Issues” July 13, 2004, OECD Directorate for Science, Technology and Industry, available at <http://www.oecd.org/dataoecd/56/34/996948.pdf>.

81  

For full details, see ICANN, “New sTLD Application. Part A. Explanatory Notes,” December 15, 2003, available at <http://www.icann.org/tlds/new-stld-rfp/new-stld-application-parta-15dec03.htm>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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new gTLDs concluded that “while it is understandable for ICANN to have wished to err on the side of caution as it undertook gTLD expansion … the resulting legal framework is cumbersome.”82 It concludes that “the number and length of appendices [in agreements between gTLDs and ICANN] could be reduced in a future round. A streamlined base agreement with perhaps a few appendices could provide a more workable format that also preserves the critical elements of registry performance and mandates compliance with ICANN policies.”83

Selection is to be determined by the degree to which independent evaluators judge the applicant to have met ICANN’s requirements in four major categories, which are divided into 15 subsidiary categories:

  1. Sponsorship

    1. Definition of sponsored TLD community

    2. Evidence of support from the sponsoring organization

    3. Appropriateness of the sponsoring organization and the policy formulation environment

    4. Level of support from the community

  1. Business Plan Information

    1. Business plan

    2. Financial model

  1. Technical Standards

    1. Evidence of ability to ensure stable registry operation

    2. Evidence of ability to ensure that the registry conforms with best-practices technical standards for registry operations

    3. Evidence of a full range of registry services

    4. Assurance of continuity of registry operation in the event of business failure of the proposed registry

  1. Community Value

    1. Addition of new value to the Internet name space

    2. Protection of the rights of others

    3. Assurance of charter-compliant registrations and avoidance of abusive registration practices

    4. Assurance of adequate dispute-resolution mechanisms

    5. Provision of ICANN-policy-compliant Whois service

In light of the prior discussions of the types of gTLDs to be added and their potential value, it is useful to examine the specifics under topic 4a, addition of new value to the Internet name space. The subtopics are:

82  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, pp. 130-131.

83  

Summit Strategies International, “Evaluation of New gTLDs,” 2004, p. 131.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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  1. Name value. The proposed name must be of broad significance and establish clear and lasting value. It should categorize a broad and lasting field of human, institutional, or social endeavor or activity. It should represent an endeavor or activity that has importance across multiple geographic regions.

  2. Enhanced diversity of the Internet name space. The TLD must create a new and clearly differentiated space and satisfy needs that cannot be readily met through existing TLDs. The proposed TLD should enhance competition in registry services and should attract new suppliers and user communities to the Internet.

  3. Enrichment of broad global communities. The TLD should have broad geographic and demographic impact. “Significant consideration” will be given to those gTLDs that serve larger user communities and attract greater numbers of registrants. “Consideration” will be given to those gTLDs whose charters have relatively broader functional scope.

These specifics, together with the sponsorship requirement, indicate that ICANN is adhering to a taxonomic/restricted approach in this selection, not allowing the TLD applicant to simply let the market decide which TLD names will succeed, but requiring that a gTLD name should categorize a “broad and lasting field of human, institutional, or social endeavor or activity … that has importance across multiple geographic regions.”

Ten proposals84 were submitted by the March 2004 deadline. Evaluation of the proposals was carried out by teams external to ICANN and, therefore, not involved in ICANN activities or subject to ICANN political pressures. Each evaluation team comprised three members: a technical, a financial, and a sponsorship-and-other-issues evaluator. The evaluators, whose identities were kept secret during the process, were selected and managed by an outside firm.85 The evaluation teams made recommendations about the preferred applications from among those that were successful in meeting the selection criteria. Some proposed domains met all of the criteria and entered a contract negotiation with ICANN staff. Other proposals did not meet all the criteria, were sent back to the sponsors with suggestions for improvement, and were resubmitted. The result is that new gTLDs will be announced one at a time and not all at once as in 2000. In October 2004, ICANN announced that it was negotiating with two prospective new gTLDs: .post and .travel; in December 2004, it began negotiations with .mobi and .jobs. In March 2005, ICANN announced the

84  

The list is available at <http://www.icann.org/tlds/stld-apps-19mar04/stld-public-comments.htm>.

85  

Summit Strategies International in Washington, D.C. See Sarah Lai Stirland, “Domain-Name Registry Expansion Process Underway,” National Journal Tech Daily, May 26, 2004.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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completion of negotiations with .jobs and .travel, and in April 2005 the board announced their designation.

Evaluation. Although ICANN adhered to the comparative hearing approach in this selection process, it significantly reduced the use of staff and board judgment and relied instead on the judgment of independent outside evaluators using an explicitly defined set of criteria. By doing so and by giving applicants the opportunity to revise and resubmit their applications, ICANN increased the apparent transparency (although keeping evaluators anonymous) and apparent objectivity of the process (although using criteria subject to a wide range of discretion), and reduced the potential for disappointed applicants to challenge the scores awarded by the evaluators.

Alternative B: Unlimited gTLDs Awarded First-come, First-served to Qualified Sponsors (2003)

Description. Almost at the opposite extreme from the preceding approach lies a proposal by Ross Wm. Rader in which an undetermined number of new gTLDs would be awarded on a first-come, first-served basis to approved “delegants” that would in turn contract with ICANN-accredited “operators” for the day-to-day operation of the gTLD.86

The delegant would be the “policy coordinator for the gTLD that ensures that the registry operates in a manner that benefits its target community.” A delegant would be approved by ICANN on the basis of four criteria: (1) the requested gTLD name is not confusingly similar to an existing gTLD name; (2) the delegant has a satisfactory plan specifying all significant operational policies; (3) an accredited operator is willing to manage the gTLD; and (4) the delegant yields rights in the gTLD name so that it can be transferred by ICANN to a new sponsor if required.

The operator would perform the registry functions. To be accredited by ICANN, the operator would have to satisfy the minimum standards for technically operating a registry. There would be no limitation on the number of gTLD registries an accredited operator could contract to run.

Evaluation. Alternative B lies squarely in the market determination camp, both with respect to determining how many gTLDs there should be and who should operate them and with respect to the organization of

86  

Ross Wm. Rader, “A Sustainable Framework for the Deployment of New gTLDs Part I,” CircleID, February 26, 2003, available at <http://www.circleid.com/article/100_0_1_0_C/>; and Part II, March 26, available at <http://www.circleid.com/article/108_0_1_0_C/>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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gTLD names. In fact, it essentially allows there to be an unlimited number of gTLDs, simply determined by the number of delegants who qualify. It does not even specify a limit to the rate of addition of new gTLDs.

This process could be combined with—for example—a policy of adding X new gTLDs per year by proceeding down the list of first-come, first-served requests and filling them as slots become available. But that raises the question of how to actually implement a first-come, first-served process. How would all the essentially simultaneous electronic entries submitted at the opening instant be prioritized? If a random selection were to be used, for example, then this process would become—at least initially—a lottery.

Nor does the proposal specify a process for resolving conflicts that might arise with trademark holders if, for example, someone other than Sony wished to register .sony as a gTLD. Presumably, however, some variant of the sunrise procedures used to protect trademark holders when the .biz and .info domains were introduced could be used in this instance.

Alternative C: Fixed Number of gTLDs Annually Awarded by Auction and Lottery (2003)

Description. Mueller and McKnight87 have proposed an auction/lottery process to award a limited number of new gTLDs each year.88 No structure would be imposed on the specific gTLDs awarded, resulting in a supply-and-demand-driven approach to the types of gTLD names accepted.

Forty new gTLDs would be made available for award each year. That number was chosen based on advice from members of the technical community with the goals of retaining the hierarchical structure of the DNS and avoiding the introduction of errors into the root zone through too many changes, made too fast. Although 40 was the number chosen for the proposal, any number up to about 80 would be compatible with the authors’ understanding of the advice they received.

The 40 new gTLDs would be divided into two tranches: 30 would be targeted for commercial applicants (but open to non-commercial as well), which could apply for any number of TLD names but be awarded no

87  

Milton L. Mueller and Lee W. McKnight, “The Post-.com Internet: Toward Regular and Objective Procedures for Internet Governance,” Syracuse University, Syracuse, New York, August 2003, available at <http://dcc.syr.edu/miscarticles/NewTLDs2-MM-LM.pdf>.

88  

A similar auction model has been proposed in Karl Manheim and Lawrence Solum, “The Case for gTLD Auctions: A Framework for Evaluating Domain Name Policy,” Research Paper No. 2003-11, Loyola Law School, Los Angeles, Calif., March 2003, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=388780>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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more than 2; 10 would be reserved for non-commercial and lesser developed country (LDC) applicants, which could apply for and be awarded only 1 name. Each applicant would pay a modest application fee, estimated by Mueller and McKnight at $1000, to cover ICANN’s costs of the selection process. The authors leave open the question of whether applications should include a fitness disclosure and statement of financial capability to operate a registry or association with an already accredited registry.

The 10 noncommercial gTLDs would be allocated first, if necessary, by a random selection process, such as a lottery. To avoid possible abuse, the resultant TLD allocations could not be sold or transferred to commercial entities.

The selection of commercial gTLDs would follow. If there were more than 30 commercial (and other) applicants, the selection would be made by a simultaneous multiple-round Web-based auction, with each bidder knowing whether it is in the top 30 or not at every time, just as with e-Bay. When the auction period ended, the winning bidders would pay the amount of the lowest successful bid in order to keep auction prices at a reasonable level. However, should there be multiple bidders for the same gTLD, such as .sex, the high bidder would receive the gTLD and pay the amount bid by the second-highest bidder. Having a predictable annual increment in gTLDs would also be expected to relieve some of the pressure on the auction prices.

If there were 30 or fewer eligible commercial applicants, each would pay ICANN’s reserve price, which would be fixed to cover the costs of the auction and of adding new names to the root. (Note that if, as some claim, there is only a limited demand for new gTLDs, this would be the outcome in the first, and possibly only, auction.)

Mueller and McKnight suggest that the proceeds of the auction (or the reserve price) go to maintaining and managing the root, with a portion reserved for the root name server operators. (See Section 5.3.2.)

After the award of the gTLDs, there would be a period during which the gTLD names could be challenged on intellectual property grounds or because of possible confusion with another gTLD. The UDRP-like process would be used to resolve such challenges.

The winning gTLD applicants would enter into standardized and uniform registry agreements with ICANN that would require adherence to a minimal set of ICANN-defined technical specifications and conformity to existing ICANN policies. They would be required to meet standards for transferring a zone file that would allow the domain to be maintained if the registry failed.

Evaluation. The result of the Mueller and McKnight proposal would be a market-determined structure of the DNS name space, presumably re-

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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sponding—at least for commercial TLDs—directly to the supplier-perceived demand for new TLDs. And except for the limitation on the rate of additions and the division between commercial and non-commercial/ LDC awards, this is also a clear expression of the market-based approach to gTLD operator selection.

Those who favor a purer market-based approach could argue against the commercial/non-commercial/LDC division on the grounds that LDCs already have country-code TLDs and that just as with the allocation of other goods (e.g., office space, equipment, personnel) there is no need to favor non-commercial organizations, which should be capable of raising funds to acquire a gTLD if they need one.

Consistent with its “let the market decide” approach, this proposal does not specify any restrictions on the registration practices of the awarded TLDs except that non-commercial/LDC TLDs cannot become commercial.

Alternative D: Differentiated Expansion of gTLDs with Selection by Comparative Hearing (2002)

Description. In 2002, the Business Constituency (BC) of ICANN proposed that all future expansion of gTLDs should occur within the framework of a previously agreed set of principles.89 In its view:

Given that there is pressure on ICANN to introduce additional names, the BC supports the development of a logical expansion, which will result in a name space with added value, rather than the cloning of the existing space. Such a value-added space will create differentiation and reduce the need for entities to defensively register.

Users—regardless whether they are businesses, non-profit organizations or individuals—want certainty. Spending time searching is not cost-effective. The user community needs a certain process for identifying prospective names and a certain process for selecting sponsors/registries to operate those names.90

Under this approach all new domain names would have to satisfy six principles:

  1. Differentiation: be clearly differentiated from other gTLDs,

  2. Certainty: give the user confidence that the name stands for what it purports to stand for,

89  

Business Constituency, “A Differentiated Expansion of the Name Space,” 2002, p. 1.

90  

Business Constituency, “A Differentiated Expansion of the Name Space,” 2002, p. 1.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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  1. Honesty: avoid increasing opportunities for bad faith entities that wish to defraud users,

  2. Competition: create value-added competition,

  3. Diversity: serve commercial or non-commercial users, and

  4. Meaning: have meaning to its relevant population of users.91

In the view of the BC, “the principles … determine a taxonomized or directory-style domain name structure…. The structure does not imply a rapid expansion. The choice of one name will preclude future non-differentiated choices.”92 The BC also argues that all new gTLDs should be both sponsored and restricted. Only bona fide members of the target group would be able to register in a gTLD. The sponsor would be responsible for ensuring that the registered names are appropriate for the registrants and do not infringe on others’ intellectual property. The BC believes that this approach “simultaneously solves three intellectual property issues. Cyber-pirates will not be able to obtain the names of others. There will therefore typically be no need for costly defensive registration. New Whois databases will be verified and therefore accurate.”93

The BC proposal recommends separation of the functions of sponsor and registry, similar to but less specific than the Rader proposal (alternative B) described above. The goal is to create a set of qualified registries that can operate any number of gTLDs under contract with the gTLD sponsor. Should a registry fail, it could readily be replaced by another qualified registry.

Evaluation. One goal of the BC proposal is to enhance the role of the DNS as a directory service for the Internet. (See Chapters 6 and 7 for a discussion of the role of the DNS as an Internet navigation aid.) Its principle of differentiation is intended to avoid the Internet users’ navigation confusion that might result from overlap among gTLDs. But it would have precluded the creation of .biz as a way of giving Internet providers another chance at a preferred second-level domain name that had been registered by someone else in .com. Moreover, by emphasizing differentiation, it would limit price competition in favor of non-price competition between gTLDs.

The BC proposal is not specific on the rate of addition of new names, other than that it is not necessarily a rapid expansion. Nor is it specific on the process by which sponsors and registries for the new names would be

91  

Business Constituency, “A Differentiated Expansion of the Name Space,” 2002, p. 1.

92  

Business Constituency, “A Differentiated Expansion of the Name Space,” 2002, p. 2.

93  

Business Constituency, “A Differentiated Expansion of the Name Space,” 2002, p. 2.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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TABLE 5.3 Alternatives for Adding Generic Top-Level Domains

Desirable Structure of Name Space

Means of Selecting gTLD Operators

First-come, First-served

Comparative Hearing

Auction (and Lottery)

Taxonomic/restricted

 

D. Business constituency

A. ICANN 2004 addition

 

Regulated

 

ICANN 2000 Addition

 

Market-determined

B. Rader

 

C. Mueller and McKnight

selected. It is silent on the fact that, as noted above, many of the existing names would not belong in a strictly taxonomic structure.

By requiring that all TLDs be sponsored and restricted, this alternative places on the sponsors and registries the responsibility of enforcing intellectual property rights and qualifying an organization’s or individual’s right to use a specific domain name. By doing so, it moves from ex post to ex ante enforcement of those rights and from consideration of name assignments when an issue arises to examination of every assignment in advance. This approach can be expected to raise the costs of running a registry and, consequently, to increase the likely registration fees.

Comparison of the Four Alternatives

The four alternatives presented above for adding new gTLDs are compared in Table 5.3 on two dimensions: desirable structure of the name space and the means of selecting gTLD operators. Both the BC and the ICANN alternatives anticipate only sponsored and restricted gTLDs, whereas the Mueller and McKnight and the Rader proposals allow, but do not require, them.

5.4.3 Recommendations

ICANN’s 2004 modification of its comparative hearing process so as to eliminate (or at least significantly reduce) subjective judgments by its staff and board and increase the process’s transparency and objectivity has reduced the potential sources of dissatisfaction with the resultant selections. However, the question still remains open as to whether it is really necessary for ICANN to qualify new gTLDs on such matters as spon-

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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sorship by a community, business and financial plans, and addition of new value to the name space.

An alternative approach would be qualification of applicants only on technical capability, basic financial viability, and adherence to registrant protection standards and ICANN policies. Then a market-based selection process—essentially an auction—could be used to select among qualified applicants when their number exceeds the number of available slots.

Recommendation: If new gTLDs are to be created, the currently employed comparative hearing or expert evaluation processes should not be assumed to be the only processes for selecting their operators. ICANN should consider alternate processes that are less reliant on expert, staff, or board judgments.

Recommendation: Any gTLD auction selection process should be designed with reference to the substantial literature on auction design.94 The following principal matters will have to be decided:

  • What is being auctioned. Is it a “slot” that the winner can use for a TLD with its choice of name and operating policy, or the “right to operate” one of a prespecified list of TLD names and policies, each of which is subject to a separate auction? Is it an outright sale or the license to operate for a fixed, potentially renewable term?

  • How the winner is chosen. Does the high bid win, or the low bid? In the latter case the bid would be the maximum amount the winner would charge for a basic registration in the TLD. (This latter case raises the issue of tightly specifying levels of service so that the bids can be comparable.)

  • What is done with the proceeds of a “high bid wins” auction. Would the proceeds go to cover ICANN operating costs or be allocated to other organizations, such as the root name server operators or the IAB/IETF in support of technical activities related to ICANN responsibilities?

  • How commercial and non-commercial bidders are treated. Would they participate equally in the same auctions, or would there be separate selection processes for each?

  • What the auction mechanism is. Would it be open or closed; single or multiple iterations; with a reserve price or not; English or Dutch;95 and so on?

94  

See, for example, Paul Klemperer, Auctions: Theory and Practice, Princeton University Press, Princeton, N.J., 2004.

95  

In an English auction, participants bid openly against one another, with each bid higher than the previous one. By contrast, in a Dutch auction, the auctioneer begins with a high asking price that is lowered until someone accepts the auctioneer’s price.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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  • How the bidders are qualified. Would it be “no restrictions” or through some combination of technical capability, financial strength, continuity provisions, and so on?

  • How many “slots” or “rights” a bidder could win. Would it be just one or two or as many as desired?

  • How post-auction actions by winners are restricted. Would it be at all; no resale for X years; no change in policies; and so on?

  • How various failure modes are dealt with. What happens if the winner doesn’t pay, or doesn’t proceed in a timely manner to set up the domain? What if the winner operates the domain poorly from a technical or ethical point of view?

Because of the many choices for each of these matters and their many possible combinations, there can be many different kinds of TLD auctions with different goals and quite different processes. Furthermore, as the previously cited OECD report96 suggests, there can be various combinations of comparative hearings (say, for qualification of prospective registries) and auctions (where demand for gTLDs exceeds the number made available). The exploration of one or more such designs should be included in ICANN’s evaluation of alternative gTLD selection processes.

5.5 OVERSIGHT OF COUNTRY-CODE TOP-LEVEL DOMAINS

Issues: Does ICANN’s responsibility for the root require that it work to increase its oversight of and authority over the ccTLDs? If so, what form should its increased authority take, and how can it be implemented? And to what degree should the ccTLDs accept ICANN’s authority and participate in its activities?

Although it does not have much visibility in the United States, the issue of who controls the delegation and redelegation of ccTLDs is highly sensitive in many parts of the world. On the one hand, some nations97 have expressed concern that the U.S. government, acting through ICANN, could unilaterally remove their ccTLDs from the root zone file and, therefore, cut them off from the Internet. On the other hand, some non-governmental ccTLD registries fear that their governments could take over control of the ccTLDs through the use of ICANN’s redelegation responsibility. In some sense, these fears are anomalous since although ICANN has been

96  

Working Party on Telecommunication and Information Services Policies, “Generic Top Level Domain Names,” 2004, p. 51

97  

For example, a Brazilian government representative at the February 2004 U.N. meeting on Internet governance expressed this concern.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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given responsibility for management of the root, the vast majority of the TLDs in the root—the ccTLDs—have, for the most part, eluded its direct authority. Fewer than half of them (though they include some of the larger ones) contribute to ICANN’s budget. Although many participate in the ICANN meetings (and the special ccTLD meetings that have occurred at the same time), they have not fully participated in ICANN’s decisions. And few have signed agreements with ICANN. Yet, through its control of the root zone file, ICANN does have the sole responsibility for recommending delegations and redelegations of ccTLDs to the DOC. So the policy issues that face ICANN are whether its responsibility for the root requires that it work to increase its oversight and authority over the ccTLDs and, if so, what form such oversight should take and how it can be implemented. And the complementary issue for the ccTLDs is the degree to which they should accept ICANN’s authority and participate in its activities. This latter issue is, of course, complicated by the fact that the 243 ccTLDs do not act in concert98 and, as described in “ccTLDs” in Section 3.4.1, represent a very wide range of relationships between government and registry and a very wide range of registry policies.

5.5.1 Current Situation

As the Internet has grown and matured, the role and importance of ccTLDs has grown and changed as well, as have their relationships with their governments, with their local communities, and with ICANN.

A study in 2002 of the ccTLDs of 45 countries revealed a wide diversity of relationships between ccTLDs and the countries’ governments.99 The ccTLDs of 10 of the 45 countries surveyed were operated by government agencies or departments, 9 by private commercial enterprises, 20 by non-profit organizations, 5 by academic institutions, and 1 by an individual. Of the 35 non-governmental sponsoring organizations, only 9 had a formal contractual relationship with their governments and 13 had informal relationships, of which 3 were awaiting formalization. Three of the ccTLDs operators were battling government attempts to take over management of the ccTLD. Altogether, only half of the studied ccTLDs had formal or soon-to-be formal relationships with their governments. Their

98  

There are, however, a number of regional ccTLD associations such as CENTR, the Council of European National Top-Level Domain Registries, which has 39 member registries, not all of which are European. See <www.centr.org>. CENTR has expressed strong positions on ICANN matters, especially its relationships with the ccTLDs.

99  

Michael A. Geist, ccTLD Governance Project, 2003, available at <http://www.cctldinfo.com/home.php>. Data for this project was obtained from ccTLD Web sites, ccTLD contacts, and GAC representatives between June and September 2002. It was not claimed to be a representative sample.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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formal relationships with ICANN were also weak. By early 2005, only 12 of the 243 ccTLDs had entered into formal agreements with ICANN.

The consequence of this evolution is that the ccTLDs operate in a space that is only in part under the oversight of any higher authority. A few ccTLDs are overseen by their national governments; some have established representative non-governmental bodies to represent the local Internet community and exercise varying degrees of oversight; some are completely autonomous non-profit bodies that operate voluntarily to meet local Internet community interests; and some are commercial bodies with some linkage to the national government.

The only body that currently has an opportunity to exercise oversight over all the ccTLDs is ICANN. According to ICANN, it does so on the basis of RFC 1591 in conjunction with “ICP-1: Internet Domain Name System Structure and Delegation (ccTLD Administration and Delegation)”100 and the “Principles and Guidelines for the Delegation and Administration of Country Code Top Level Domains,” a revision of principles first published in 2000, which was presented by the Governmental Advisory Committee at the ICANN meeting in April 2005.101

The delegations in the early days of the DNS placed highest priority on the responsibility of the manager and less on notions of ownership. However, with the current economic, political, and social importance of the Internet to all nations, matters of accountability to the local government, local Internet community, and the global Internet community have assumed much greater significance. Thus, matters of delegation for new ccTLDs and redelegations of responsibility for existing ccTLDs have become much more important and, when combined with the many different ccTLD-government relationships, have also become much more complex.

The relationship between ccTLDs and ICANN has been difficult from the beginning of ICANN. First, a large number of the ccTLDs felt no need to contribute to ICANN’s budget, since they did not think they received any corresponding benefits. Whether or not true,102 many ccTLDs believed that 90 percent of ICANN’s resources were devoted to gTLD issues, while they were asked to provide 35 percent of its budget.103 Sec-

100  

Available at <www.icann.org/icp/icp-1.htm>.

101  

See <http://gac.icann.org/web/docs/cctld/ccTLD_Principles_MDP_Final.rtf>. This new, revised statement of principles was published in April 2005.

102  

However, according to a reviewer with knowledge of ICANN’s activities: “Close to 50 percent of ICANN time/resources has been devoted to ccTLD and international issues…. much of that time is spent on small ccTLDs (with) complex redelegation issues. A considerable amount of time is also spent liaising with regional organizations and governments … participating in international fora.”

103  

Peter de Blanc, “ccTLD Briefing Document,” February 19, 2001, available at <http://www.wwtld.org/meetings/cctld/ccTLD-Briefing-document.htm>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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ond, many of them resented ICANN’s major role in deciding on delegations and redelegations—essentially a policy role—that they felt would be better performed locally. They also believed that their position as one constituency within ICANN’s Names Supporting Organization, whose other constituencies primarily addressed gTLD issues, did not adequately reflect their importance as 243 of the 258 TLDs.

Under its 2003 reorganization (see Section 5.2.4, alternative F), ICANN has responded to that concern by replacing the Names Supporting Organization with two supporting organizations, the Generic Names Supporting Organization (GNSO) and the Country-Code Names Supporting Organization (ccNSO), which formally came into being in March 2004. ICANN hopes, thereby, to draw the ccTLDs more actively into its operations and build a stronger basis for their support. Furthermore, the revised ”Principles for the Delegation and Administration of Country Code Top Level Domains” issued in April 2005 by the Governmental Advisory Committee addresses many of the concerns of the ccTLDs and governments.104

Although ICANN’s actions may have the desired effect, it is useful to lay out the alternative approaches to providing reasonable oversight of the ccTLDs that have been suggested.

5.5.2 Alternatives

ICANN appears to have four goals for the ccTLDs. First, that they operate according to standards, protocols, and practices that are consistent with the reliable and stable operation of the DNS and that allow open connectivity to and from their registrants and the rest of the Internet. Second, that they contribute proportionately105 to the overall costs of maintaining the DNS root zone file and ccTLD database in which they are listed. Third, that they accept ICANN’s authority to decide on delegations and redelegations when controversies arise. And fourth, that they formalize these expectations by means of an agreement with ICANN. However, not all of the ccTLDs accept these as appropriate goals for ICANN’s relationship with them. What is the current situation?

The absence of significant and sustained operational problems sug-

104  

See <http://gac.icann.org/web/docs/cctld/ccTLD_Principles_MDP_Final.rtf>. This new, revised statement of principles was published in April 2005.

105  

In 1999, the Task Force on Funding recommended that the ccTLDs contribute a 35 percent share of ICANN’s continuing revenue requirements. See <http://www.icann.org/committees/tff/final-report-draft-30oct99.htm#4>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

gests that the ccTLDs generally meet the first of ICANN’s goals, supporting reliable, stable, and open operation of the DNS and Internet.106

However, there is only a modest contribution, at present, from a minority of the ccTLDs to ICANN’s budget. (In 2004-2005, the 243 ccTLDs’ fixed contributions are budgeted at $1.02 million, whereas 10 gTLDs are expected to provide $1.45 million. An additional $14 million is expected from the accredited registrars and gTLD registries in proportion to actual registrations.) So they do not appear to satisfy its second goal.

The ccTLDs represented by the European association of ccTLD registries, the Council of European National Top-level Domain Registries (CENTR), favor a much more limited role for ICANN. In their view, ICANN should restrict its operational responsibilities to maintaining the ccTLD database (containing Whois information about the ccTLDs) and the corresponding root zone file entries and ensuring that the ccTLDs satisfy minimal technical requirements to function within the global DNS. In their view, delegations and redelegations should be made only by ICANN upon verified instruction from the current manager of the ccTLD. Where there is controversy, it should be referred to a third party for resolution. (This approach would be consistent with the proposals noted earlier to increase ICANN’s legitimacy by narrowing its range of authority and by delegating sensitive decisions to appropriate third parties wherever possible.)

An even stronger view, held by a number of ccTLD managers, is that the maintenance of the ccTLD database should be the responsibility of a ccTLD-sponsored organization independent of ICANN. This organization would receive entries from the ccTLDs and have full responsibility for updating the database to reflect the latest information. Through a contract with ICANN, it would provide the relevant ccTLD entries for inclusion in the root zone file, but ICANN would play no part in deciding what the entries would be. Participation in the independent database would be voluntary for each ccTLD. If a ccTLD desired, it could continue to submit information directly to ICANN. As a result, each ccTLD would have a “vote” on whose management of the ccTLD database it favored.

Thus, although ICANN’s delegation and redelegation authority is accepted de facto—because it currently has sole authority to recommend changes in the root zone file to the DOC—there are many ccTLDs that dispute either the way that authority is exercised or that it should be an ICANN function at all. Consequently, its third goal has not been satisfied.

106  

On rare occasions, a ccTLD may temporarily disappear from the Internet as the Libyan ccTLD did in April 2004. This is often the result of political or institutional disputes within a nation over responsibility for the ccTLD, with which ICANN has to deal. See “Who Runs the Dot LY?,” Libyan Jamahiriya Broadcasting Corporation, 2004, available at <http://en.ljbc.net/online/subject_details.php?sub_id=26&cat_id=1>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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Finally, as noted above, only 12 agreements have been signed between ICANN and ccTLDs. So ICANN’s fourth goal has not been satisfied.

It should be observed that a comparable list of the goals of the 243 ccTLDs cannot be provided, since they are consistent neither with each other nor, necessarily, with ICANN. As efforts are made to increase the ccTLDs’ role in ICANN and ICANN’s influence over them, many independent ccTLDs will straddle the fence, playing the various forces off against each other until the ambiguities and uncertain power relationships among the U.S. government, their own national governments, ICANN, and the international community are worked out. Because of the diversity of ccTLD models, histories, and relationships to national governments, it is unlikely that any proposal will satisfy everyone; but some aggressive or lopsided proposals are likely to antagonize all of them.

How then can ICANN best interact with the ccTLDs? The differing goals of ICANN and of some of the ccTLDs have led to four proposed models for ICANN’s “oversight” of the ccTLDs.

Alternative A: “Thick” ICANN
Description

The model initially implemented by ICANN has had ICANN attempting to achieve its goals by playing a strong role in the oversight of the ccTLDs: maintaining the ccTLD database and ccTLD entries in the root zone file, making recommendations to the DOC concerning delegations and redelegations, establishing standards for ccTLD performance, and inducing compliance through MoUs with the ccTLD managers or the relevant governments. Currently, it is seeking through the newly established ccNSO to engage the more active participation of the ccTLDs in ICANN activities.

Evaluation

By elevating the ccTLDs to the status of a supporting organization, similar to the GNSO, ICANN has both raised their profile in the organization and given them influence over board membership and ICANN policy. By engaging them more directly in its governance, it evidently hopes to gain their support for its role in ccTLD oversight. At the same time, the revised ICANN bylaws107 give the ccNSO the principal role in establish-

107  

The changes in ICANN bylaws that establish the ccNSO and define its roles are in ICANN, “Appendix A to Minutes of Regular Meeting of ICANN Board,” June 26, 2003, available at <http://www.icann.org/minutes/minutes-appa-26jun03.htm>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

ing policy for entry of data concerning ccTLDs into the root zone file. Over time, this may lead to a ccNSO-led redefinition of the delegation/ redelegation policies and practices of ICANN.

However, some of the most important ccTLDs were not participants in the ccNSO upon its formation. Most notably, only four of the European ccTLDs (from the Netherlands, the Czech Republic, Gibraltar, and the Cayman Islands) were among the 38 founding members. In April 2004, the European Community (EC) member responsible for the Internet said that the EC will stand by ICANN as long as it continues to make changes and that unless the EC ccTLDs come to agreement with ICANN, the EC will lose patience and the governments will step in, possibly turning ICANN’s ccTLD role over to the ITU.108 But the distance that remains between ICANN and the European ccTLDs was clearly shown by the response of CENTR to ICANN’s proposed 2004-2005 budget. In a May 2004 letter to ICANN, CENTR accused ICANN of a “lack of financial prudence” and refused to support it “financially or otherwise” in its “unrealistic political and operational targets.”109 Specifically, it said: “ICANN/IANA should focus on doing a few administrative tasks well and not seek to make decisions—decisions are best handled elsewhere.”

Alternative B: “Thin” ICANN
Description

Many ccTLDs would favor a much more limited role for ICANN, essentially reducing it to performance of a technical coordination function and eliminating all policy functions. Under this approach, ICANN would continue to run the IANA function, maintaining the database of ccTLDs and the ccTLD entries in the root zone file. However, decisions about the delegation of responsibility for a ccTLD when it is a subject of dispute would not be made by ICANN. Rather, they would be made, in the first instance, by the local Internet community relying on national laws and processes as necessary, and if that failed, by a process established by the ccTLD community. In this model, the ccTLDs would agree to pay the cost incurred by ICANN in maintaining the database of ccTLDs and ccTLD entries in the root zone file through a fee based on the size of each ccTLD’s membership.

108  

Speech by EC Commissioner Erkki Liikanen quoted by Kieren McCarthy, “EC Tells Europe and ICANN to Make Peace,” The Register, April 28, 2004, available at <http://www.theregister.co.uk/2004/04/28/ec_icann_warning_shot/>.

109  

Paul M. Kane, letter to Paul Twomey, May 26, 2004, available at <http://www.centr.org/docs/statements/CENTR-Response-2004-Budget.pdf>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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Evaluation

Alternative B would reduce ICANN to performance of a technical/ administrative root registry function, eliminating its role in determining who among alternative claimants should have the right to be the registry for a specific ccTLD. In that sense, it is compatible with the approaches to gTLD selection that favor the use of auctions to determine which gTLDs should enter the root zone file. A combination of the two approaches would virtually eliminate ICANN’s role as a gatekeeper to the root and leave it primarily as the record keeper and, presumably neutral, validator of the technical qualifications of registries.

Alternative C: International Oversight
Description

In the third model, a major part of the IANA function would be removed from ICANN and turned over to a third-party organization established by the ccTLDs. That organization would be responsible for maintaining an up-to-date ccTLD database and sending the appropriate information to ICANN for entry into the root zone file. Presumably, there would be a corresponding agreement with the DOC (as long as it retained its stewardship role) to accept the information from the third-party organization as authoritative. If that organization had broad international participation in its governance and activities, this might alleviate some of the discontent with the U.S. government’s current central role as steward of the DNS. One possibility would be, for example, to turn the ccTLD database and delegation responsibilities over to the ITU. However, the ITU is an intergovernmental organization, responsible primarily to the telecommunication ministries of governments. Yet, as noted earlier, many ccTLDs are either simply independent from their governments or operating in delicate balance with them. They would probably not like a process whose only recourse is to the governments.

Evaluation

This alternative takes alternative B a step further by eliminating even the record-keeping function of ICANN with respect to the ccTLDs. Its role would simply be to pass the appropriate entries to the organization responsible for distributing the root zone file (currently VeriSign). In fact, this amounts to establishing an “ICANN” for the ccTLDs, leaving the present ICANN with responsibility only for the gTLDs. Although alternative C would certainly eliminate any ccTLD discontent with ICANN, it might simply shift the focus of concern to the new organization, depend-

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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ing on how the issue of delegation/redelegation decision making was decided. This possibility suggests that finding a solution to the delegation/redelegation decision process within the existing ICANN that is satisfactory to the ccTLDs and their governments would preclude ccTLD support for alternative C.

Alternative D: Self-governing Root Management Organization
Description

An additional possibility would be an ICANN focused solely on root management responsibilities whose members are limited to those groups, including the ccTLDs, having a direct interest in the root. (See “Alternative C: ICANN as Registry for the Root” in Section 5.2.4.) This model assumes that the ccTLDs would take an active role in ICANN’s governance and would, therefore, be more willing to see ICANN play an active, “thick” role in ccTLD oversight. By creating a ccNSO and giving it greater influence on board composition and enabling it to submit recommendations to the board for its un-modified approval or rejection, ICANN has taken a step in this direction.

Evaluation

Alternative D, discussed in greater detail as one of the ICANN alternatives, could achieve the goal of bringing the ccTLDs fully into the management of an organization whose authority would be strictly limited to management of the root. Once again, however, the issue would devolve to the sensitive one of how delegation/redelegation decisions are made. This alternative might be more attractive to the ccTLDs because it would presumably increase the strength of their influence over ICANN’s operations and decision-making processes. However, the issue still remains the degree to which they, a highly diverse group, would all be comfortable with the policies and practices that would determine which registry is delegated or redelegated responsibility for a ccTLD.

Comparison of the Four Alternatives

The four alternative models described above for oversight of ccTLDs are compared in Table 5.4 on two dimensions: who maintains the ccTLD database and who recommends redelegations (to DOC). Three models assume that ICANN will continue to manage the ccTLD database. Only one posits an independent manager of the database. Two models foresee the decision/policy responsibility for delegations and redelegations being removed from ICANN.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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TABLE 5.4 Alternatives for Oversight of the Country Code Top-Level Domains

Recommender of Redelegations

Maintainer of ccTLD Database

ICANN

Third Party

ICANN

A. Thick ICANN

D. Self-governing root management organization

 

Third Party

B. Thin ICANN

C. International oversight

5.5.3 Conclusions

Conclusion: Resolution of ICANN’s role vis-à-vis the ccTLDs is one of the critical steps on the path to establishing an ICANN that is viewed as a legitimate and appropriate steward for the DNS.

The creation of the ccNSO represents progress in that direction whose success will depend on the ccNSO’s ability to attract an increasing number of members, both from the large ccTLDs that are needed for financial and other support of ICANN and the smaller ccTLDs that can benefit from the support that ICANN could offer them. Even more critical is the refinement of the principles and processes for delegation and redelegation of ccTLD registries and their acceptance by most of the ccTLDs.

Conclusion: If the creation of the ccNSO does not result in increased participation by the ccTLDs in ICANN policy making, then ICANN may find itself subject to increasing pressures to constrain its role to that of gTLD management and root zone file record keeping.

5.6 RESOLUTION OF CONFLICTS OVER DOMAIN NAMES

Issue: Does the UDRP need to be improved? If so, how should it be improved?

Administrative processes, such as the Uniform Domain Name Dispute Resolution Policy (UDRP), are playing an important role in helping to resolve certain private-party disputes related to the use of domain names, without requiring ISPs, registries, registrars, registrants, or other parties to appear in court to provide evidence or to protect their interests. Such processes contribute to the smooth operation of the economic and legal framework associated with the DNS. At the same time, while the highly simpli-

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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fied rules created by the UDRP and similar dispute resolution procedures (e.g., those adopted by some ccTLDs) and dispute avoidance efforts (e.g., sunrise provisions) make it possible for some actual or potential disputes to be resolved quickly at relatively low cost and without requiring the parties to be represented by legal counsel, they can also undermine the potential for fair outcomes. The UDRP is the primary subject of this section, since most attention has been paid to issues concerning it.

During 2003, the ICANN staff carried out a review of the UDRP. It produced an issues report in August 2003.110 The report cataloged and identified the pros and cons of proposed solutions to both procedural and substantive issues and concluded that “while there are some areas where improvements may be possible, there does not appear to be an urgent need for revision.” Furthermore, it noted that “revision of the UDRP is likely to be contentious; there are not many (if any) areas that are obviously amenable to achieving consensus.” (Since the UDRP is a consensus policy, according to provisions of the ICANN registry and registrar agreements it must be revised by consensus.)

To provide an understanding of the issues that have given rise to those proposals, this section begins with an assessment of the UDRP and then examines the major proposals for improvement. It incorporates the committee’s conclusions and recommendations. The section concludes with a discussion of the potential consequences of deployed internationalized domain names (IDNs) for dispute resolution.

5.6.1 Assessment of the UDRP

Many observers believe that the UDRP has functioned well to resolve disputes over domain names.111 However, there are others who believe that the current system is biased toward the interests of trademark holders and away from the interests of individuals.112 Notwithstanding its perceived disadvantages, numerous decisions have been rendered under

110  

ICANN, “Staff Manager’s Issues Report on UDRP Review,” August 2003, available at <http://www.icann.org/gnso/issue-reports/udrp-issues-report-01aug03.htm>.

111  

One such favorable assessment appears in Colm Brannigan, “The UDRP: How Do You Spell Success?,” Digital Technology Law Journal 5(1, July), 2004, available at <http://wwwlaw.murdoch.edu.au/dtlj/2004/vol5_1/brannigan.pdf>. A careful assessment of the pros and cons of the UDRP can be found in Laurence Helfer and Graeme Dinwoodie. 2001. “Designing Non-national Systems: The Case of the Uniform Domain Name Dispute Resolution Policy,” William and Mary Law Review 43(1, October):141-273, 2001, available at <http://www.kentlaw.edu/depts/ipp/intl-courts/docs/dh.pdf>.

112  

See, for example, A. Michael Froomkin, “ICANN’s ‘Uniform Dispute Resolution Policy’—Causes and (Partial) Cures,” Brooklyn Law Review 67(3):608-718, 2002, available at

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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the UDRP, and other domain name dispute policies have been modeled after the UDRP as described in “Resolving Domain Name Conflicts” in Section 3.5.2. Thus, the UDRP has both positive and negative aspects, which differ, however, depending on whether they are being considered from the perspective of the complainants or of the respondents.

General benefits. The UDRP crosses national boundaries and relies on communication technology to bring the parties together It is more informal than litigation in national courts and relies on panelists who are experts in the areas of trademark law and domain name issues. The proceedings are quasi-in-rem, meaning that even though both parties are included, the action is focused on resolving which party has rights to the domain name, rather than assessing fault or monetary damages against either party. Although it is international in scope, it raises no jurisdictional issues, which may be present in court litigation in some countries, by requiring all domain name registrants to agree to submit to a mandatory administrative proceeding as part of the registration agreement. The UDRP requires that the proceeding be conducted in the language of the registration agreement, which eliminates language as a potential barrier to participation by domain name registrants.

Complainant’s benefits. From the complainant’s (generally, trademark holder’s) point of view, the UDRP’s positive features include that it provides a quick and relatively inexpensive method of resolving a domain name dispute and obtaining the transfer of a domain name to the trademark owner. Domain name disputes brought under the UDRP are generally resolved within 45 to 60 days of the domain name dispute provider’s receipt of the complaint. In addition, the UDRP is not limited to registered trademarks identical to the domain name, and it allows trademark owners to file a complaint against a registrant of a domain name that is “confusingly similar” to the owner’s mark. Further, owners with common-law rights in trademarks may also take advantage of the UDRP as there are no trademark registration prerequisites to commencing a UDRP action.

The UDRP is a cost-effective dispute resolution mechanism overall because it (1) is based primarily on the pleadings of the parties, (2) only

   

<http://personal.law.miami.edu/~froomkin/articles/udrp.pdf>. In addition, see Michael Geist, “Fair.com? An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP,” University of Ottawa, Faculty of Law, August 2001, available at <http://aix1.uottawa.ca/~geist/guistudrp.pdf>. See also a follow-up piece by the same author in March 2002, “Fundamentally Fair.com? An Update on Bias Allegations and the ICANN UDRP,” available at <http://aix1.uottawa.ca/~geist/fairupdate.pdf>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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allows in-person hearings under exceptional circumstances, and (3) only allows additional evidence at the discretion of the panel.113 Furthermore, the parties are generally not required to travel in order to participate in the proceeding, which is usually conducted by postal mail, e-mail, or facsimile. This last point can be seen as a greater advantage for the complainants, since ordinary court proceedings would occur in the respondents’ locales, thus, requiring the complainants to travel.

Respondent’s benefits. From the respondent’s perspective, the panel can grant the complainant the requested remedy (i.e., transfer or cancellation of the domain name registration) only if the complainant succeeds in showing all three of the UDRP elements (see “Remedies to Conflicts over Names in the DNS” in Section 3.5.2), even if the respondent did not submit a response. Respondents see other advantages to the UDRP as well, since it requires trademark owners to comply with a standard stricter than that of the courts—demonstrating that the respondent had both registered and used the domain name in bad faith (although it has been argued that not all panelists have adhered to this requirement). In addition, the UDRP allows a party against which an adverse decision is rendered to take the decision to the courts.

Moreover, the UDRP provides limited remedies to trademark owners, namely simply transfer or cancellation of the domain name. To receive monetary damages or an injunction, a trademark owner would have to proceed to litigation.

Complainant’s disadvantages. From the complainant’s perspective, the preparation of a proper complaint and necessary appendices can be time-consuming and costly, and although much less costly than preparing for litigation, it is still viewed by many complainants as excessive.

In addition, the only avenue, at present, for correcting what the complainant views as an improper decision by the panel is to litigate the same matter before a court having in personam jurisdiction over the respondent, or in some cases in in rem jurisdiction over the domain name in dispute. This is not perceived as an advantage by all complainants, especially if the respondent is not located in the same location as the complainant and the domain name was not registered in the United States, where in rem jurisdiction is possible in some cases.

Moreover, complainants see disadvantages in the limitations on remedies (no potential damage recovery no matter how egregious the respondent) and in panels’ inconsistent definitions of critical terms, such as “confusing similarity,” “use,” and “bad faith.”

113  

ICANN, “Rules for Uniform Domain Name Dispute Resolution Policy,” October 24, 1999, Paragraph 12.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
×

Respondent’s disadvantages. There are also, however, disadvantages that fall primarily on the respondents. Although the UDRP allows administrative proceedings to be conducted in languages other than English, the UDRP itself is written in English. Many non-native-English speakers who register domain names with registrars that do not provide translated versions of their registration agreements or the UDRP may not be aware that they are subject to the provisions of the UDRP or that they should avoid selecting a domain name that violates the trademark rights of other parties.114 Additionally, since the complainant selects the dispute resolution service provider, it is possible for complainants to “forum shop” (i.e., to select a provider more likely to favor the complainant, or which has been more sympathetic to similar complaints in the past).115

Some critics have also alleged that providers, seeking to increase their chances of being selected by future complainants, purposely choose arbitrators who are more likely to favor complainants, but little concrete evidence supporting this allegation has been provided. Nevertheless, arbitrator selection bias would be a serious issue were it to occur, and service providers should be reviewed on a periodic basis to make sure such bias does not exist.

Once a decision is rendered, the respondent’s only recourse for dealing with a decision transferring or canceling the domain name is to proceed to court.

General deficiencies. Critics of the current UDRP116 have pointed to a number of perceived deficiencies. Among them are that some panelists do not apply the precedents of previous arbitrations appropriately, or in some cases consistently; some panelists (and many respondents) are not well-enough educated in either the operations of the DNS or the policies and rules applicable to domain name disputes; the charges for a UDRP proceeding and the ways in which panelist are compensated can lead to

114  

As noted by one reviewer: “… many countries have consumer protection laws that require all consumer contracts concluded within the jurisdiction to be in the local language in order to be valid and enforceable. This condition is not satisfied by the UDRP’s requirement that the proceedings be conducted in the language of the registration agreement.” See Holger P. Hestermeyer, “The Invalidity of ICANN’s UDRP Under National Law,” Minnesota Intellectual Property Review 3(1):1-57, 2002

115  

An early analysis of the UDRP that asserted that “forum shopping” was a source of bias favoring the complainant was in Milton Mueller, “Rough Justice: An Analysis of ICANN’s Uniform Dispute Resolution Policy,” Convergence Center, Syracuse University School of Information Studies, 2000, available at <http://dcc.syr.edu/miscarticles/roughjustice.pdf>. The INTA study, “UDRP-A Success Story” (2002), is a rebuttal to the Mueller article. Michael Geist’s reports, “Fair.com?” (2001) and “Fundamentally Fair.com?” (2002), both provide further data on the asserted complainant-beneficial effects of forum shopping.

116  

See, for example, the Froomkin, Mueller, and Geist articles cited above.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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undesired consequences; and there is no appeals process with the UDRP itself—the only appeal is a de novo action before a court.

Each of these perceived deficiencies is described and proposals for remedying them are addressed in the next section.

Conclusion: The UDRP has generally satisfied the need for an effective and cost-efficient means of resolving disputes concerning domain names; however, it has weaknesses for which remedies have been proposed.

5.6.2 Proposed Improvements to the UDRP

In response to the perceived deficiencies of the current UDRP, a number of improvements have been proposed: a better, more consistent application of arbitral precedents; an appeals process; required use of three-member panels; improved training and self-help tools; and revised funding and compensation structures.

Better application of precedents. Some believe that more consistent application of arbitral precedents in UDRP proceedings is needed, so that similar issues can be addressed in a more predictable manner that also supports case-by-case knowledge building. In addition, greater consideration of international legal issues is needed, given that laws vary from country to country. Because the panelists in UDRP proceedings tend to be most knowledgeable about their home country’s laws, new issues in disputes tend to be examined through the legal lens of a particular panelist’s country. When these decisions are relied on in later cases, panelists unfamiliar with the legal context of the original decision will often assess them—inviting misinterpretation, however well-intentioned a panelist may be. One way to encourage better and more consistent use of arbitral precedents is to have an internal appeals process, whose panelists would be in a better position to require and make use of precedents.

Appeals process. An appeals process could serve the purpose of reversing decisions that were clearly faulty or that covered a situation or issue for which competing bodies of precedent exist.117 To remain consis-

117  

For a specific proposal, see Patrick Kelley, “Emerging Patterns in Arbitration Under the Uniform Domain-Name Dispute-Resolution Policy,” Law and Technology Writing Workshop, Annual Review of Exemplar Papers, School of Law (Boalt Hall), University of California, Berkeley, 2001-2002, available at <http://www.law.berkeley.edu/institutes/bclt/pubs/annrev/exmplrs/final/pkfin.pdf>. Another proposal for an appeals process appears in M. Scott Donahey, “Divergence in the UDRP and the Need for Appellate Review,” 2002, available at <http://www.tzmm.com/content/articles/Mil2910.pdf>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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tent with the original purpose of the UDRP, the intent of such a process would be to re-examine only a small percentage of decisions, so as to provide an inexpensive mechanism (as compared to a court case) for resolving relatively straightforward cases. As noted above, an appeals process would have the likely effect of encouraging better and more consistent use of arbitral precedents. But support for an appeals process has been limited, with the emphasis being placed on resolving such issues through a national court proceeding—rather than creating another layer to a relatively quick and inexpensive dispute resolution process. Those who hold that view emphasize that the UDRP, with or without an appeals process, is not intended to serve as a full substitute for national and international law or courts, but simply to provide a quicker and less costly process for the majority of disputes, whose resolution is often obvious. With careful design and restriction to very specific situations, the proposal for a limited appeals process could be consistent with that intent.

Three-member panels. Analyses conducted during 2001 and early 2002 of UDRP proceedings indicated a significant difference in their outcomes, depending on whether they were heard by one-member or three-member panels.118 (The choice is made by the complainant in the first instance, but the respondent can request a three-member panel.) Three-member panels found for the complainant in a smaller percentage of the cases. Critics have taken this as an indicator of greater bias toward complainants by the one-member panels and have recommended, therefore, that all panels have three members.119 (In three-member panels, the complainant, the respondent, and the provider each provide lists from which one of the panelists is chosen.) Others have argued that the impression of bias is due to other factors.120 Both sides agree that three-member panels are more expensive and, therefore, that they erode the benefits of the UDRP as a relatively inexpensive means of resolving domain name disputes. Those who favor them argue that the increase in fairness is worth the cost. In addition, they have suggested the payment of a bond by the complainant that would be used to cover the respondent’s costs of the proceeding if the complainant lost and would be refunded if the complainant won.121

118  

Michael Geist, “Fair.com? An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP,” 2001; and Michael Geist, “Fundamentally Fair.com? An Update on Bias Allegations and the ICANN UDRP,” 2002.

119  

Michael Geist, “Fair.com?,” 2001.

120  

INTA, “The UDRP by All Accounts Works Effectively,” 2002.

121  

Milton Mueller, “Success by Default: A New Profile of Domain Name Trademark Disputes Under ICANN’s UDRP,” Convergence Center, Syracuse University School of Information Studies, June 24, 2002.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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Improved training and self-help tools. In many UDRP proceedings the focus is on the use of domain names in Web addresses (URIs). The role of domain names in e-mail addresses and in other applications is often ignored by the panelists, even though the effects can be different from those in Web addresses. One possible reason for this oversight is that some panelists may lack a technical understanding of how the DNS and the Internet operate. Thus, some believe, UDRP proceedings could be improved by enhancing the training requirements for panelists in the technology underlying the DNS, the manner in which domain names can be used, and the application of the policies and rules applicable to domain name disputes. Improvements in the process might be developed to help panelists verify the manner in which domain names are used, either through self-help mechanisms or by changing the rules to request this information from the respondents. Dispute resolution providers could provide training for panelists on a regular basis, with such training being a requirement to maintain panelist status with that provider.

Thorough and detailed self-help tools might also be developed to enable respondents to better understand the UDRP process itself, the timeline involved, and the substance and format of an effective response to better comprehend and respond to a UDRP action.122

Revised funding and compensation structures. Under the current funding structure, the revenue for panelists depends on the volume of cases, thereby either creating a disincentive to spend a sufficient amount of time reviewing the facts in a case and writing a well-thought-out opinion, or creating an incentive for marketing strategy and tactics to attract cases by defining lucrative niches, which may or may not correspond to justice in dispute resolution proceedings. Observers assert that such niches exist and that complainants often forum shop—selecting dispute resolution service providers based on their past record of favorable (to the complainant’s position) rulings.

Since some parties believe that the $1150 to $1500 fee for filing a complaint regarding a single domain name is already expensive, there is some resistance to any proposed increase. In addition, increasing the fees paid to resolve or avoid a dispute raises the likelihood that, on the one hand, individual domain name holders would be discouraged from employing dispute resolution processes, while, on the other hand, well-financed domain name holders might be discouraged from filing large numbers of not completely justified complaints.

122  

Early in 2005 the World Intellectual Property Organization posted on its Web site an “informal overview of panel positions on key procedural and substantive issues,” including references to decisions supporting each line of opinion. The “WIPO Overview of WIPO Panel Views on Selected UDRP Questions,” which is not binding on the panelists, is available at <http://arbiter.wipo.int/domains/search/overview/index.html>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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On the compensation side, the fee paid to panelists, typically $1000 to $1750, is below the level that highly qualified attorneys and consultants say is needed to attract them to serve or continue to serve as panelists. While it may never be possible to set the level high enough to attract and retain highly paid specialists on the basis of compensation alone, it may be worth examining the fee schedule to see whether a higher level could be established while retaining the low cost of the UDRP.

Recommendation: Arbitral domain name dispute resolution processes, rather than national courts, should continue to be encouraged as the initial and primary vehicle for resolving most disputes associated with the rights to domain names.

Recommendation: The feasibility and desirability of five specific UDRP improvements should be further considered by ICANN: improving consistent use of arbitral precedents, establishing an internal appeals process, using three-member panels, improving panelist knowledge about the technology underlying the DNS, and improving the nature and structure of incentives in the process.

5.6.3 Disputes Concerning Internationalized Domain Names

The widespread deployment of internationalized domain names (IDNs)123 may well compound the difficulty of resolving disputes over domain names by increasing the possibility that domain names will be created that appear to be the same, but are not.

The introduction of non-ASCII characters introduces a number of opportunities for conflicts, not about domain names themselves, but about characters that look alike. As the most trivial of examples, the upper-case Greek alpha and its Cyrillic equivalent are indistinguishable on the printed page from Roman upper case “A,” but the three have different Unicode code points and strings containing them will compare differently. There are several similar combinations involving Roman, Greek, and Cyrillic scripts, but other examples appear in almost all pairings of alphabetic scripts. Another problem occurs because of the overlap between, for example, Simplified and Traditional Chinese, where the characters look different but have the same meanings.

These concerns about similar-appearing, or similarly interpreted, domain names are compounded by the observation that, in some circum-

123  

See Section 4.3 for discussion of internationalized domain names.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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stances, a single registered domain name might have dozens, or even hundreds, of such variations. A cybersquatter could turn such conflicts into a potentially lucrative business by offering to sell such variant names to the “legitimate” owner at a fee just below the cost of a UDRP proceeding. Some of the registries and communities that would be most affected have concluded that it is preferable to shift the problem, to the degree possible, from conflict resolution to conflict avoidance by imposing restrictions on the registration of domain names that would conflict or otherwise cause confusion. ICANN has reinforced this approach by creating a guideline that requires that an IDN must be registered only with regard to a specified language, which eliminates some of the difficulties encountered with mixed scripts.124 This approach is discussed in more detail in Section 4.3.

One view is that the potential for confusion in these cases is not really different from that of existing similar-appearing domain names, for which it has been suggested that UDRP-based name conflict resolution is adequate and appropriate. But variations among similar-looking domain names are such as to generate, potentially, hundreds of possible conflicts with a given character string.

The Joint Engineering Team (JET) guideline model (see Section 4.3.3) addresses this problem by preventing some large fraction of the potential conflicts, rather than devising remedies for them after they occur. The JET guidelines take the position that IDN packages are atomic, and that there should be no mechanism for moving domain names in or out of one once it is created (see Section 4.3 for discussion of IDNs). Under that model, if a domain name conflict arises in the creation of such a package, the conflicting (already-registered or reserved) domain name is simply not placed in the new package. But if the conflicting domain name is later deleted, it does not become part of the later IDN package unless the domain names associated with that package are explicitly deleted and reregistered. That may or may not be the best possible model, but the alternatives, such as having domain names appear as reserved in two or more packages, with a priority order, lead to administrative, policy, or database management nightmares.

But there are constituencies that oppose such systems, some of them on the grounds that dispute resolution is adequate and others, perhaps, on the more cynical grounds that letting things go to dispute resolution permits them to collect registrar and registry fees on the names whether they are valid or not and encourages even more business in defensive registrations.

124  

Guidelines are available at <http://www.icann.org/general/idn-guidelines20jun03.htm>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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Conclusion: The deployment of internationalized domain names introduces new sources of potential conflict over domain name rights. Reduction of such conflicts through guidelines and registration policies should be encouraged.

5.7 PROVISION AND PROTECTION OF WHOIS DATA

Issue: What is the appropriate balance among the various interests in Whois data?

As noted in Chapter 2, the Whois service began as a vehicle for network operators to find and contact those responsible for the operation of an Internet host when, for example, an operational problem arose. However, with the commercialization of the Internet, the Whois service has become an important and valuable tool for intellectual property owners and is often used by trademark owners to determine the identity of suspected infringers and cybersquatters. In addition, it is used by law enforcement agencies, such as the Federal Trade Commission in the United States, to track down the sources of fraudulent or other illegal uses of the Internet. At the same time, there has been concern about its real and potential exploitation by marketers and others who find the information about domain name registrants valuable. These uses have, in turn, given rise to significant and strongly held privacy concerns. Thus, while the ability to search the Whois database has always been limited, because of privacy concerns access and searching of Whois information have become more and more restricted over time.

5.7.1 Assessment of Whois Data Issues

In the early days of the DNS, there were few, if any, concerns about the misuse of Whois data, just as ensuring the integrity of DNS data was deemed to be unnecessary. However, the population of users of Whois data has increased markedly in scale and scope, and assumptions about the good intent of all users have become unfounded. Furthermore, under the UDRP, giving false Whois information and not responding to requests for information have led to a presumption of bad faith by the respondent.

For example, when Whois was used as a Unix command, trademark owners were able to retrieve a wide range of information, including contact information of the domain name registrant and a list of all domain names registered by one particular registrant. Later, and until 2001, Network Solutions, Inc. (NSI) allowed Internet users to retrieve a list of up to 50 domain names registered by a particular registrant, but then changed the maximum number to 10 registrations. Currently, none of the registrars allow Internet

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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users freely to query their Whois databases to determine which domain names a particular registrant has registered. Many registrars charge a fee for each request for a list of domain names registered by one of their registrants. In addition, some of the registrars do not provide a domain name registrant’s e-mail address in the contact information, but instead assign each registrant a generic e-mail address125 that is linked to the e-mail address the registrant provided in registering its domain name.

Data Accuracy

Whois information can be inaccurate, out of date, or false. Indeed, registrants may provide fictitious names and addresses and fail to update any of their contact information promptly, if ever. ICANN’s Registrar Accreditation Agreement contractually binds each of its accredited registrars to investigate and correct any reported inaccuracies in contact information for the domain names they maintain.

ICANN established in September 2002 the Whois Data Problem Reports System (WDPRS) to receive public reports of inaccurate or absent Whois data. The sixth amendment to its MoU with the DOC requires that ICANN publish an annual report containing an analysis of the received reports. According to its March 2004 report,126 over the 18-month period from September 2002 through February 2004, the system received about 24,000 confirmed Whois inaccuracy reports, concerning about 16,000 different domain names. Of these, 82 percent concerned .com; 13 percent, .net; and 5 percent, .org. (An enhanced version of the system that will cover the new gTLDs as well as the legacy ones was launched in 2004.) The complaints received by each registrar were generally proportional to the number of names it registered. On average, each registrar received 4.8 complaints per year per 10,000 names managed. Somewhat more than a third of these complaints resulted in the correction of data or the removal of a domain name.

As a further step to improve Whois data accuracy, ICANN adopted the Whois Data Reminder Policy (WDRP) on March 27, 2003.127 Since November 2003, all ICANN-accredited registrars must comply with the

125  

This could cause problems in a UDRP proceeding since the generic e-mail address could be interpreted as false and, consequently, a contributor to the presumption of bad faith on the part of the respondent.

126  

ICANN, “Community Experiences with the InterNIC Whois Data Problem Reports System,” March 13, 2004, available at <http://www.icann.org/whois/wdprs-report-final-31mar04.htm>.

127  

ICANN, “Whois Data Reminder Policy,” June 16, 2003, available at <http://www.icann.org/registrars/wdrp-htm>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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WDRP with respect to registrations they sponsor in all top-level domains for which they are accredited. At least annually, a registrar must present the current Whois information to registrants and remind them that provision of false Whois information can be grounds for cancellation of their domain name registration. Registrants must review their Whois data and make any corrections.

Data Privacy

ICANN posted a staff manager’s issues report on privacy issues related to Whois on May 13, 2003,128 that spelled out a catalog of the issues, the stakeholders, and their apparent positions on the issues. The issues concerned the data collected, including its quality, handling, disclosure, and use; the classification of registrants (i.e., political, commercial, individual); and commercial confidentiality and rights in data.

The various stakeholders were viewed as placing emphasis on different issues. Non-commercial users were viewed as focusing on privacy, whereas commercial users were seen as concerned with accessibility to enforce accountability of uses. The intellectual property interests were understood to stress the importance of ready access to support investigations of intellectual property abuse, while ISPs support it to facilitate resolution of network problems and identification of the sources of spam. Registrars and registries view registrant data as an important business asset that should not be made available to competitors, while at the same time registrars need to access registrant data of competitors to confirm authorization of transfers. Registrars and registries both bear the expense of providing the services and, therefore, have strong incentives to reduce the cost of doing so.

As a consequence of these differences in emphasis among stakeholders, the policy issues surrounding Whois services (as opposed to the Whois protocol) are often framed in adversarial terms. On the one hand, trademark holders and their representatives want comprehensive and free access to all Whois data and would like improvements in Whois services, such as higher quality in the Whois data and the ability to consolidate data across Whois services more easily. They see Whois data as an essential resource in the pursuit of those who compromise their trademarks in

128  

ICANN, “Staff Manager’s Issues Report on Privacy Issues Related to Whois,” May 13, 2003, available at <http://www.icann.org/gnso/issue-reports/whois-privacy-report-13may03.htm>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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domain names.129 On the other hand, those who are concerned about individual privacy highlight the problems that could be associated with unconstrained access to Whois data—from junk mailers and marketers to those who may use such data to facilitate more serious, illegal activities such as identity theft.

In recognition of the complexity of the issues and interests involved, the ICANN staff manager’s issues report recommended as the next step the formation of a Whois/privacy steering group in the Generic Names Supporting Organization (GNSO) to conduct a fact-finding and issues definition process. Following on the work of that steering group, the Names Council of the GNSO in October 2003 launched three simultaneous task forces on various aspects of Whois privacy. The council intended to align their recommendations for submission to the ICANN board.

Task Force 1 (TF1) was charged with examining what contractual changes (if any) would be required to allow registrars and registries to protect domain name holder data from data mining130 for marketing purposes. Task Force 2 (TF2) was asked to address issues concerning the data to be collected from registrants, their options to restrict access to the data and be informed of its use, and their ability to remove certain data elements from public access and receive notice if it is accessed. Task Force 3 (TF3) was tasked with looking at verification of the data collected, considering both errors and deliberate falsification. The three task forces presented their preliminary reports at the end of May 2004. They have been posted on the ICANN Web site for comment.131 Among the significant issues and positions identified were the following.

  • Local law.132 In some cases, national privacy laws conflict with the provisions of ICANN’s agreement requiring the registrars to collect and

129  

In a UDRP proceeding, for example, trademark owners are often required to show a “pattern of conduct” by the respondent of registering domain names incorporating the trademarks of other parties. Unless a trademark owner can guess the domain names registered by the respondent, it can incur considerable costs in obtaining this information, since the respondent may have used several different registrars in registering its domain names or provided slightly different contact details for each registration.

130  

“Data mining” as used here means the use of computerized techniques to extract data about registrants from registrar Whois files in large quantities. Often these techniques are designed to overcome specific limitations imposed by registrars on the number of names that may be requested. The lists are then used for unsolicited mailings (spam) and other possibly illicit (identity theft) purposes.

131  

Links to the preliminary reports are available at <http://gnso.icann.org/issues/whois-privacy/index.shtml>.

132  

For this and the next two items, see the report of TF2 available at <http://gnso.icann.org/issues/whois-privacy/index.shtml>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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make accessible certain data elements about registrants. The ICANN registry/registrar agreement should be modified to exempt registrars who obey local law from the conflicting provisions of the agreement.

  • Data elements. All of the data elements currently collected are considered by at least some constituencies to be required, although some constituencies dispute the needs for some of them. No consensus exists on whether new elements are needed and whether some existing elements should be made voluntary. The issue is less what should be collected by registries/registrars and more what data should be made available for public access.

  • Publication of data. Whois data has a wide range of uses (as discussed above.) It is also subject to abuses—telemarketing, identity theft, spamming, stalking, and abuse and harassment have been reported, though not quantified. There is a need to achieve a balance between accessibility and privacy. Possible approaches include tiered access, in which different types of users would have access to different subsets of the data; proxy registration services that would substitute third-party for registrant data and control access to the latter; and the ability of registrants to opt out of publication of certain data on a case-by-case basis. The latter approach has been adopted by some ccTLDs.

  • Data mining and marketing.133 If only non-sensitive data (generally, technical information) were to be available via Whois, it would have little value, be unlikely to be data mined, and have little impact on privacy. However, to the extent that sensitive data (generally, personal contact information) is publicly available through registry/registrar Whois services, TF1 members agreed that at a minimum the requestor of Whois information should be required to identify (and authenticate) itself to the Whois provider together with its reasons for seeking the data. They left open the issue, however, of whether notice to the registrant of such a request should be required. They also left open the question of whether and under what conditions automated access to Whois data could be allowed and to whom. Among the possibilities would be enabling a restricted license that would provide data to approved requestors for recognized purposes in human-readable format only. Requestors could be approved generally and centrally (a white list) or locally and specifically (an individual use list).

133  

See the report of TF1 available at <http://gnso.icann.org/issues/whois-privacy/index.shtml>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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5.7.2 Whois and Internationalized Domain Names134

Just as it does for the UDRP, the introduction of internationalized domain names (IDNs) raises technical and institutional issues for the Whois service. For the most part, these are issues about the languages in which Whois queries will be posed and responded to.

At the basic query level, the current Whois service expects to receive ASCII characters only; it cannot receive queries in Unicode (which is used to encode the many different character sets of contemporary human languages), and its responses are similarly in ASCII. But in an internationalized environment, domain names will not all be written in ASCII (although, as explained in Section 4.3, they will all be mapped into ASCII strings). This raises the first question: What character sets should be acceptable in a query? The choices include not only Unicode, but also IDNA puny code (see Section 4.3) and local character sets, or some combination of them.

Similarly, responses to Whois queries are currently provided in ASCII. This raises the second question: What language should be acceptable in a response, and how should it be encoded? The choices of language include the language of the nation in which the registrar or the registrant is located or English. Or one might permit some “international languages,” such as English, Chinese, French, Spanish, Russian, Arabic, and so on. If the response is to be useful to most questioners on the international Internet, then would it be reasonable to expect them to have to hire translators? Or should the Whois registrant be required to list its information in some commonly accepted language? If the language is other than English, then issues about coding arise that are similar to the question regarding queries. For example, should Unicode be required and, if so, which encoding form of Unicode? Or should local character encodings, which might be in much more general use with the particular relevant language or script, but less easily accessible internationally, be permitted?

A third question arises since IDN practices for complex languages actually create packages of reserved names (see Section 4.3). In such cases, how much information should Whois provide about other names in the package in response to a query about one of them?

None of these issues had been resolved by September 2004. However, as IDNs are more widely adopted, the lack of their early resolution will increase the likelihood of problems arising and the difficulty of introducing the necessary changes.

134  

This section draws on material in John C. Klensin, “‘Whois’ Internationalization Issues,” presentation at the ICANN meeting in Carthage, Tunisia, October 2003, available at <http://www.icann.org/presentations/klensin-whois-carthage-29oct03.ppt>.

Suggested Citation:"5 The Domain Name System: Institutional Issues." National Research Council. 2005. Signposts in Cyberspace: The Domain Name System and Internet Navigation. Washington, DC: The National Academies Press. doi: 10.17226/11258.
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On the other hand, the work on a new protocol to replace Whois (see Section 5.7.3) has explicitly addressed some internationalization issues. Although that work does not address all of the issues raised above, it at least makes it possible to transmit and receive Unicode characters without somehow encoding them into ASCII form and, if it is desired to support local character encodings, to construct a framework for identifying and using them.

Recommendation: The IETF and ICANN should address Whois data internationalization issues with high priority in order to enable their resolution and implementation of the results together with the widespread introduction of IDNs.

5.7.3 Conclusion and Recommendation

The issues concerning the accuracy of and access to Whois data engage the interests of many stakeholders with legitimate but sometimes conflicting interests. They entail actual and potential conflicts with differing national privacy laws. Furthermore, the ICANN agreements with registrars and registries obligate them to accept only consensus policies. Consequently, the best way to achieve improvements in the Whois policies and practices appears to be through the consensus policy development process in which ICANN is engaged. Attempts by individual governments to impose specific requirements on Whois, such as recent legislative initiatives in the U.S. Congress,135 can interfere with these efforts and have counterproductive consequences by inducing registrants to find ways to hide their identities.

Conclusion: Legislative or technical initiatives that construe Whois narrowly will not be productive in the long run and serve only to energize those constituencies that perceive their interests as being compromised.

The committee agrees that access to Whois data should be viewed as a tiered decision, and not as a binary decision. Gradations should exist, as they do in local telephone directories where entries are included by default, but where unlisted numbers can be obtained. Moreover, under certain conditions, law enforcement officials can obtain an individual’s information, even if the individual has opted not to be included in the public directory. Alternatively, individuals can sometimes embellish their ge-

135  

H.R. 3754, 108th Congress, Fraudulent Online Identities Sanctions Act (FOISA).

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neric entry (for a fee). Thus, changes to the Whois process need to be conceived in a systematic way that accounts for the varying legitimate perspectives. The example of local telephone directories is offered for illustrative purposes only. The committee is not recommending this specific model per se, although the analogy can also be helpful since personal data (name, address, and phone number) are made publicly available through printed (and now online) directories, just as they are through Whois services.

Recommendation: Future systems that support Whois data management and access should be designed to allow for gradations in access while maintaining some degree of free access to Whois information. The Whois protocol will have to be replaced to accommodate the desired gradations in access.136

136  

The IETF had, by October 2004, approved as “standards-track” documents (see Box 3.3) several elements of a proposed replacement protocol, which is called IRIS and defined by the CRISP Working Group, that will implement this capability. The protocol also addresses most or all of the other perceived deficiencies of the Whois protocol, including its inability to deal with non-ASCII characters. More detail on those deficiencies is available in the statement of requirements for the new protocol in A. Newton, “Cross Registry Internet Service Protocol (CRISP) Requirements,” RFC 3707, February 2004, available at <http://www.rfc-editor.org>. However, in May 2005 it was still unclear how long it would take for all the elements to be approved, published, and implemented.

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The Domain Name System (DNS) enables user-friendly alphanumeric names—domain names—to be assigned to Internet sites. Many of these names have gained economic, social, and political value, leading to conflicts over their ownership, especially names containing trademarked terms. Congress, in P.L. 105-305, directed the Department of Commerce to request the NRC to perform a study of these issues. When the study was initiated, steps were already underway to address the resolution of domain name conflicts, but the continued rapid expansion of the use of the Internet had raised a number of additional policy and technical issues. Furthermore, it became clear that the introduction of search engines and other tools for Internet navigation was affecting the DNS. Consequently, the study was expanded to include policy and technical issues related to the DNS in the context of Internet navigation. This report presents the NRC’s assessment of the current state and future prospects of the DNS and Internet navigation, and its conclusions and recommendations concerning key technical and policy issues.

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