DRAFT VERSION

Eminent Domain: Initial Policy Perspectives on Nationalizing

Country-Code Internet Addresses

 

By Kenneth Neil Cukier

Presented at INET 2002, June 2002 in Washington, DC.

 

"In the short term, at least, governments will not be able to regulate (the Internet). ... But as the Net matures, and its technologies march further along their own frontiers, governments are likely to return -- not only with black helicopters, but (imposing) order that even the unruliest of pioneers is eventually bound to desire."

-- Debora Spar, "Ruling the Waves," 2001.

Eminent domain; noun (1783): A right of a government to take private property for public use by virtue of the superior dominion of the sovereign power over all lands within its jurisdiction.

-- Merriam-Webster Dictionary

 

Abstract

The country-code domain system sits at the fulcrum of national sovereignty and the future of ICANN. This paper challenges the assumed benefits of the Internet's traditional private-sector model of ccTLD administration. It argues that governments should have near unfettered control of their national domains, to reflect the Internet's status as a critical public infrastructure, and as a means to wed national representation to the ICANN process. The approach is controversial because it may eliminate legacy ccTLD administrators and will weaken ICANN's power to act on behalf of the global Internet community. As a result, the paper recommends a policy framework for officials involved in Internet governance that may minimize the potential negative consequences.

__________

 

I.

Introduction

Country-code top level domains are the crucible of ICANN, the Internet Corporation for Assigned Names and Numbers. For countries, the two-letter address suffix represents a valuable national resource that must be operated as a natural monopoly in the public interest. Although each ccTLD has inherently international utility, territories are starting to recognize it as a component of their sovereignty and a vital national interest. The ccTLDs are a platform for national economic growth and the institutions of civil society brought online. Similarly, ccTLDs enable national law to be applied to the network, as well as reflect the "brand" of the country.

But for ICANN, ccTLDs actually control the organization's future -- either as the linchpin of its success or the hemlock of its demise.

The confederation of independent ccTLD administrators could bring ICANN vitally-needed legitimacy and funding if it formally recognizes the authority of ICANN and pay it fees. Conversely, if the ccTLD community continues to balk from establishing a formal relationship with ICANN, it would weaken the institution. ICANN has so far proved unable to enter into contracts with ccTLD administrators, who consider ICANN over-regulatory and unaccountable.

The issue comes at a time when many governments seek greater control over their two-letter geographic domains. These moves have been criticized by some in the Internet community, who claim it destroys the fabric of loosely-regulated, private-sector administration of the Internet that not only worked well, but was a determining factor in the Internet's epic success. Others claim the criticism is simply a knee-jerk reaction against government regulation in Internet matters. Part of the passion surrounding the issue is due to nostalgia: There is a sacrosanct belief that the Internet's approach of spreading the domain name system via private individuals and institutions rather than public authorities -- which is unarguably responsible for its fast growth -- must be preserved else the Internet become less open, inflexible and hostile to fast-paced innovation. There is some truth to this.

To understand how to proceed from the current crises, it is important to consider the past. The controversy surrounding ICANN and ccTLD administrators stems from a deep historical dilemma: The Internet was initially deployed, and its coordination activities instituted, when it was an informally-organized private data network. However, today it has matured into a critical public infrastructure for global communications. This is the basis of the conflict. Can the same system of stewardship over national domains endure, despite the network having completely changed in terms of use and user-base?

The history of regulating the telephone provides an imperfect example: The cost of constructing national telephone systems was so expensive and complex that in most countries the state was involved from the start. (Not so, the privately-deployed Internet, that was exempt from traditional telecom regulation.) Still, within a short period of time, the International Telecommunication Union was established to coordinate the international exchange of telephone calls just as it had telegraphs in an earlier time. The ITU is an affiliate agency of the United Nations, dotted with diplomats. As the domain name system takes on more characteristics of the telephone system, notably with a technology called ENUM that matches phone numbers with Internet addresses, the question of the degree to which the Internet's underlying system falls under the purview of governmental oversight is continually brought to the fore.

ICANN was created in 1998 to preserve the private-sector basis of the Internet's management, which would be retain the network's fast-moving nature. Government control, the idea went, risked encumbering the Internet's growth by imposing a layer of bureaucracy and politics onto the technology, which by design resists yokes. Yet even under the days of ICANN's precursor, the Internet Assigned Numbers Authority led by Jon Postel, had issued a policy document that essentially gave governments authority over their ccTLDs, something ICANN reaffirmed and strengthened.

Today, we are in a transitionary stage of the Internet; a period of institution-building to carry civil society into cyberspace. It raises a melancholic irony: The network that triumphed because it developed outside of political and commercial domination is now too important to be run under the same structure that enabled it to emerge in the first place.

The nationalization of country-code domains may not be an optimal outcome. Indeed, there are valid reasons for sticking with the current system of ambiguous public-private ccTLD administration for the moment, and disadvantages to handing it over to governmental control rather than private-sector operators working for the public good. But when one considers what the Internet might be like in as little as 10 year's time -- far surpassing the global telephone network in use, importance and reach -- it seems clear that governmental power is not only natural, but desirable. The approach realistically treats the interests nation-states, and of industry and average citizens that rely on government to provide constancy and reliability.

So it's really not a question of whether ccTLDs should be sequestered by public authorities, but how, over what time frame, and what sort of safeguards might be needed to help ensure that the global public interest is served in cyberspace. This essay is a precursory attempt at addressing those questions.

 

II.

Background

Country code top level domains were established in 1985, when the domain name system was first initiated. Jon Postel managed the system on behalf of the US government as a data networking researcher at the University of Southern California's Information Sciences Institute in Marina del Rey, California, later known as the Internet Assigned Numbers Authority, or IANA. Postel chose to base the address extensions on the International Organization for Standards document that specifies two-letter abbreviations for countries and territories, called the ISO 3166 Code. The pre-existing international standard was chosen because it enabled Postel to defer the question of what constituted a country, so as to avoid political problems should certain factions of a country request a domain.

Postel delegated responsibility for administrators to register names under the country-code top level domain (ccTLD) to private individuals or institutions. The system was managed by informal guidelines that were eventually encapsulated in a document with the Internet's standards body, the Internet Engineering Task Force, called RFC 1591, or "Domain Name System Structure and Delegation," in March 1994. It was updated a number of times, most importantly in October 1997. Postel delegated the domains to the private sector for three main reasons: It would spread the Net more quickly since it was less bureaucratic; the Net was so small at the time that it wasn't clear governments wanted to manage it; and because the Internet was deployed globally and by the private sector that no governmental institution seemed to have the scope or legitimacy to manage it.

The first ccTLD recorded as activated was .us for the United States on 15 March 1985. That was followed by .uk for the United Kingdom on 24 July 1985 (technically, a slight anomaly -- the ISO code specified "GB" as the correct two-letter identifier, for Great Britain). Isreal was the third ccTLD three months later, followed by countries in western Europe and Asia throughout 1986. The pace of new ccTLD assignments grew steadily, following the spread of Internet connections worldwide. During the mid 1990s, some governments, mainly in the West, established ties with their ccTLD administrators. In some instances, such as in France, the ccTLD administrator developed a formal, legal relationship as an entity operating on behalf of the government. As the Internet economy began to emerge, domain name registrations became a multi-million dollar business that attracted the attention of business people.

In 1996 and 1997, the domains of a large number of small territories were delegated to administrators by Postel under RFC 1591 guidelines. Many of these delegations were criticized, and some later revoked, when it became apparent that the administrator was operating the domain purely for commercial motives with little regard for Internet users in the territory of the domain. The IANA's informal rules, along with the trusting nature of Dr. Postel, seemed to be a partial cause of the problems. In one instance, the government of Bhutan turned to the International Telecommunication Union, a UN agency in Geneva that oversees the world's telephone number country codes, for help reclaiming its ccTLD that had been delegated to an individual with tenuous links to the tiny Asian nation.

Once ICANN was created in November 1998, its Government Advisory Committee began deliberating on the rapport between ccTLDs and national sovereignty. There was a consensus among officials on the GAC that ccTLDs should fall under the remit of national governments. This was never clearly spelled out by the IANA. Although it seems to say that governments could obtain control of their ccTLDs if they demanded it, the change needed the support of the local Internet community. That ambiguity allowed Postel to have the parties find a compromise in the case that an official entity tried to grab power, possibly at the expense of the existing Internet users. [1]

In May 1999, ICANN formalized and clarified RFC 1591 to give greater powers to government to claim their ccTLD in a document called "Internet Coordination Policy 1" or ICP-1. This generated complaints among some Internet users because it seemed to extend government regulation onto the Internet, which they felt would harm its future development. Meanwhile, the GAC issued policy statements on ccTLDs that asserted increasingly greater control, and some governments petitioned ICANN to help re-delegate names, which were eventually done. In 2000, ICANN sought to enter into a bilateral discussion with governments concerning ccTLD matters. It also delegated a .ps domain for use by the Palestinian Authority in Israel.

During its first three years, ICANN tried to enter into contracts with ccTLD administrators, which would specify the obligations of both parties and also require ccTLDs to contribute fees to fund ICANN. The ccTLDs refused, stating that ICANN's procedures lacked openness and accountability. Additionally, the group of administrators argued that the ccTLDs have special interests that are not well represented in ICANN's Domain Name Supporting Organizaiton, and sought their own seat on the ICANN board. The issue spilled over to the ICANN public Board of Directors meeting in Sweden in June 2001 when representatives of ccTLDs stated they were walking out on the ICANN process.[2]

In 2001, work was initiated to create a .eu domain for Europe. Also, the re-delegation of Australia's .au generated controversy, since it appeared that ICANN's processes did not seek the consensus of the local Internet community and was done suspiciously fast and opaquely. In 2002, the government of South Africa sought to claim control over its .za domain via a national policy document rather than through a petition to ICANN, sparking a fresh debate over the role of national government in overseeing ccTLDs.

 

III.

Analysis of Current Situation

The controversy over ICANN's rapport with ccTLDs in some ways has been overshadowed by a reform plan proposed by the body's president in March 2002. It recommends ICANN revoke the five at-large board seats earmarked for the general Internet community and instead include government representatives, as well as eliminate an independent review board designed as a check on ICANN's actions. But the plan, far from overshadowing the ccTLD debate, is really a direct result of the failure of ICANN to come to terms with the country-code domain administrators.

There is an unreconcilable dispute between ICANN and ccTLDs. ICANN wants ccTLDs to adhere to its formal policies as well as be a main contributor of funding for the global body. It also wants the ccTLDs to become formal licensees of the nation or territory it represents. Together, these objectives are described by ICANN's staff as a "triangular relationship" between ICANN, governments and the domain operator. In fact it is a misnomer: Once the relationship is established between the three parties, ICANN henceforth need only deal with one group on a bilateral basis, the government, for future re-delegations. The triangular structure is designed to place existing ccTLD administrators under the command of the government of the domain they serve, which currently is not so clearly defined. The move radically changes the spirit of RFC 1591, by anointing the nation-state the arbiter of the interests of the local Internet community, where previously the situation was held in an untested balance between the two; governments and the national user-base were considered separate entities with overlapping, but not necessarily exact, interests.[3]

As for the ccTLDs, they want more transparent and accountable procedures to protect their positions. Specifically, this means obtaining a degree of autonomy that the ICANN contracts prevent; assurances that ICANN won't strip domains from current administrators unless there's proper cause for a re-delegation other than a government's claim of sovereignty; and greater representation on ICANN's board for greater influence on policy decisions. The ccTLD community have reason to be wary of ICANN's procedures; the body has often acted in a clumsy or dishonest manner. It has violated its bylaws or simply rewritten them to their convenience, ignored recommendations from its own committees, and successfully eliminated public oversight or internal review of its activities.

Between the two positions, there is very little room for compromise. As a result, something has to give. History and common sense suggest that the side with greater force will win, which in this case may be the nation-state. Additionally, the pattern of technological development and government control has shown that after a period of growth and experimentation, innovations enter a stage of maturity and stabilization. At that point government regulation brings the technology to the mainstream, creating a social good for most of the parties concerned, albeit it sacrifices innovation for predictability. Technical development slows down, but the invention is exploited.[4]

To be sure, there are a number of possible scenarios to resolve the impasse. One party's position can soften, or a limited agreement can be reached while the deeper issues fester. But on the present course, if one group wins purely at the expense of the other, it could lead to a sub-optimal outcome for all.

For instance, should the ccTLD community splinter into establishing an alternative means for "root" service, it would fracture of the domain name system. The ccTLD community would have achieved its aim of breaking free of an overbearing ICANN, but at the expense of stability on the Internet (although not workabilty; after a period of adjustment, the Net may continue to function fine).

On the other hand, ICANN and governments could sequester ccTLDs, justifying their actions on the legal doctrine of "eminent domain," which in the U.S. is a means for government to take away private property at a fair market price if it can demonstrate that an overriding public interest is served. But this outcome, whereby ICANN and governments achieve their aim of bringing formal political control over the ccTLD system, risks imposing precisely the top-down constraints that ICANN was designed to prevent.

Between these extremes is a realpolitik approach, that although unsavory for Internet old timers, probably best enables the Internet to mature in a stable fashion and realize its potential as the platform for global communications. It is a "managed transfer" of power from ccTLDs and ICANN to government, that enables the Internet community to "lose" but in the process cut the best possible deal for itself. It is one that preserves freedoms on the Internet and retains the spirit of innovation at the infrastructure level of the network as much as possible. It's a "smart capitulation" rather than a slowly torturous defeat, which is clearly underway at present.

 

IV.

Policy Considerations

If the nationalization of ccTLDs is an inevitability, as can reasonably be assumed, the best way for it to happen would be in a managed process that has the support of all concerned parties, particularly Postel's legacy ccTLD administrators.[5] Ideally, the sequestering would take place in an environment where parties that oppose governmental administration of the Internet could be convinced to offer "disgruntled acquiescence" by at least having their legitimate concerns alleviated. This might take the form of adjacent policy initiatives designed to:

* Promote the freedoms that are at the heart of the Internet;

* Ensure the ability for innovations in the domain name system to occur;

* Maintain a heterogeneous domain name system that provides alternative generic domains;

* Impose restraints on governments actions to see that it acts in the best interests of the Internet community rather than simply its own.

The worry among some "Internet libertarians" (for lack of a better label) is real. The loosely-regulated ccTLDs allow for relatively unprohibited technological innovations and unobtrusive registration policies that have the effect of safeguarding the domain name system from governmental power that could be exercised to restrain individuals' access and use of the Internet. For instance, governments could impose licensing requirement for Internet use, and stringent content controls that restrict things like discussing religion or criticizing government officials, with the penalty being having one's domain name deleted from the ccTLD database.[6] That would be catastrophic.

As the Internet takes on greater importance in society, personal domains may serve as the root of one's identity both online as well as offline in the "real" world. (Indeed, the distinction has blurred for many people already....) The domain name system is the vital on-ramp for Internet usage, from publishing a Web site to receiving email and could easily be turned to control Internet activities as fundamental as going online. Revoking a domain name in the networked age is the equivalent of social banishment, political exile, excommunication. It is a digital solitary confinement, akin to slicing off one's tongue, ears and eyes -- as well as mind, for access to network resources will someday be more than a matter of communications, but a complimentary component of mental activity. A form of existence. Deus ex machina meet cogito ergo sum.

The fear is that under nationalized domains, governments could impose restrictions that block individual access. That's something that the Internet community around the world sought to prevent, by establishing a global network deployed by the private sector outside governmental control. (To be sure, the initial research and design was funded by the US government, which continues to fund the coordination of its naming and numbering identifiers through the IANA, now a part of ICANN.) Indeed, the private maintenance of ccTLD registration is a tacit step towards acknowledging people as members of a world community based on geography rather than citizens under national political control.

The sequestration of ccTLDs by government authorities under claims of national sovereignty opens up Internet users to very real potential harms. It certainly weakens ICANN's power to influence how a country-code domain is politically run, which enabled the body to uphold the interests of a local Internet community and not necessarily their government. For these reasons, certain policy safeguards should be considered.

 

V.

Policy Framework

A policy that eases the nationalization of ccTLDs and upholds the interests of the global Internet community might include the following components:

* Principle / Exception -- National governments are granted control over their designated ccTLD as a matter of national sovereignty. The limitation to this policy is provided that no actions are taken by a country over its domain that threatens the integrity or stability of the domain name system and the smooth functioning of the Internet (such as grafting a non-standardized technology onto the domain; e.g. multi-lingual domain names, or a not-yet-created technology).

* Transition / Balance of Power -- The assumption of national control, via a government designated agency or sub-contractor, is to take place over a long enough period of time to ensure a stable transition. The government and its designated ccTLD agent would enter into a contract with ICANN that places limits on each others powers. For instance, the ccTLDs can impose transparency and financial constraints on ICANN to ensure predictablity in ICANN's future actions. Likewise, ICANN could specify a source of regular funding and adherence to a minimum of technical standards and operational performance. (This would firmly and forever bolt nations to the ICANN process as a key stakeholder, not as government qua government, but as sovereigns of ccTLDs.)

* ccTLD Constraint / gTLD Availability -- Governments, in return for sovereignty over their country code domain, agree to permit the registration of gTLDs by Internet users in their country. (This principle should be established as a trade issue of market access). Government control may end the situation where certain ccTLDs are marketed on the basis of their mnemonic meaning rather than the country they represent (e.g. .nu for the Pacific island of Niue instead of "new" in English or "naked" in France). As a result, it's possible that ccTLD registrations might become less open. In response, this plank provides Internet users with an alternative means to register a domain name should the national domain become either restrictive or technically incompetent. Presumably, certain gTLDs will be loosely regulated, as some are today, which makes them a means to promote values of freedom of expression and communications, which the Internet inherently encourages. In fact, this provision should be used to encourage the development of more gTLDs not only because the namespace could benefit from a diversity if so many domains will fall under government control, but because many ccTLDs may no longer be used for gTLD purposes, like .nu.

* Governmental Restraint / DNS Extendibility -- Governments agree not to exercise control over the standards setting functions of the underlying domain name system, its architecture, protocols or any other aspect of its design and implementation. This limitation on governmental power is the most important point, and why the nationalization of ccTLDs isn't a complete giveaway. The provision represents a Trojan Horse. On the surface, it simply enables the Internet's naming infrastructure to develop unencumbered by governmental power; more subtly, it allows for the obsolescence of today's DNS, by a system that may replace or work in parallel with it. [7]

In essence, it is a Holy Exchange: Governments get power over their specific slice of the global domain name system via their ccTLDs and thereby can govern the DNS from the bottom-up, in return for guaranteeing they won't regulate the overall system of the global DNS from the top-down. Preventing governments from thwarting DNS development ensures that the Internet remains open to disruptive innovation at the infrastructure-coordination layer, at a time when the ICANN structure fuses political power with the Internet's current technical architecture, potentially ossifying the Internet's development. It creates an inherent conflict of interests that potentially disadvantages Internet users: Institutional stakeholders that benefit from political power under today's DNS architecture would unlikely be willing to allow a new, superior technology to supercede the current design since it would mean they'd have to give up hard-won political power.

Ultimately, winning this concession foretells the possible emergence of an "ICANN-sanctioned DNS" as but one of many different naming systems used on the Internet. Others that are geared to communities of interest or countries could emerge that work alongside the ICANN-certified DNS. It's a splintering of the Internet's naming operations, which despite a degree of complexity and uncertainty that impacts network reliability, encourages the natural diversity in Internet navigation that exists in the real world.

 

VI.

Policy Consequences

Does this policy sell out Postel's legacy ccTLDs? Probably. However, it does so trying to maximize their value on the chopping block. In that respect, there a number of different positive justifications for these policy provisions, as well as drawbacks to nationalization.

Firstly, the policies promote bottom-up coordination that may lead to a "thin" ICANN, one with a narrow remit. Currently, governments treat Postel's ccTLD system as a sort of "lost generation" of the Internet. Because they can't easily exercise control over their ccTLDs, governments instead try to impose regulations from the top-down over the whole organization. Icann, meanwhile, becomes bloated and its mission expands.

Nationalizling ccTLDs might be a step at reversing this. It treats Postel's legacy ccTLDs as a "lost generation," too, but in this case, hands the domains over to governments in return for less government influence in running the larger system in the future. Governments are going to run something: better to have them drill down into controlling the microcosm of the domain name system via their ccTLDs rather than the macrocosm of Icann itself. That gives them power from the bottom up. If the ccTLD controversy went away, Icann might be able to become more the small technical body its founders envisioned rather than the global public policy commissar it is today.

Secondly, the value of fusing countries onto domain administration is that governments not only are restrictive, but are themselves restricted. This is to say that the control works both ways: Just as governments will impose regulations onto the domain, governments also are prevented in what they may do.[8] This is classic political science. Governments by nature place constraints on freedom; the social contract, for instance, is one such balance. At the same time, governments are limited in their actions. In most instances other than international pariah states, governments have formal processes, mechanisms of accountability, the rule of law and are answerable to public opinion. If nations were simply given control of their ccTLD, it would be unlikely if they didn't operate it within a certain margin of discipline that was beneficial to the Internet users in their location.

However, there are costs to ccTLD nationalization. The central drawback is that there's no way to prevent nationally-imposed restrictions, such as abandoning anonymous speech or licensing requirements for Internet use. By handing country-code domains to governments, one must be willing to accept losing the idea that the Internet acts beyond national borders or outside governmental control. If the government-appointed ccTLD administrator "misbehaved" or there were "persistent problems with the proper operation of the domain" (the language used in RFC 1591 on reasonable cause for a domain revocation), there would be nothing that ICANN could do to enforce compliance -- the damage would be to the Internet user community in that geographic location. But since the ccTLD is a matter of national sovereignty, the matter is outside ICANN's remit.

This would mark a significant change from how the Internet community from the days of Postel acted. In fact, one of the central arguments why Internet self-governance worked well was because it found mechanisms to avoid abuses that some governments commit. For instance, the privately-managed ccTLD prevented a successful coup's new dictator from easily handing over the registration job to his third cousin, against the interests of Internet users in a kleptocratic nation. In cases were one might have tried, there were a number of bureaucratic counter-moved IANA could have made, such as stalling by requiring under RFC 1591 that the parties discuss the matter first themselves, and then by making a ccTLD re-delegation a long and complex process that takes away the immediate benefit that the new ccTLD administrator might have been expecting.

However, by nationalizing the country domains, ICANN would lack the standing to interfere in the matter. The interests of the global Internet community -- the shared sovereignty of interconnectedness that the Internet promotes -- would be moot. In fact, in the telecommunications world, the dictator's new telecom minister usually does turn out to be his first cousin. The Internet, possibly in a sign of its mainstream success, now simply follows on that tradition for good and ill.

 

 

 

VII.

Conclusion

This paper began by stating that country code top level domains are the crucible of ICANN. In truth, it more akin to its kryptonite. In the image of Superman's deadly rock, it is a poisonous, space-age substance, seemingly from another world, that drains the strength of the body.

There's no good solution to the problem. But if the nationalization of country domains are to take place, these are a few of the issues that should be considered. The policy approach treats ccTLDs for what they are: accidents of history in their importance, and anachronistic in the way they're managed.

The key issue in the controversy over ICANN and ccTLDs is that a network that was deployed by the private sector, managed outside government control and operated devoid of telecom regulatory oversight (and flourished precisely because of these things) has now become a classic public infrastructure in use and importance, but not in regulatory status.

The ccTLDs belong to the medieval Internet, the IANA-approved network. It would intellectually irresponsible to believe that this is the only one that will exist in the future. Rather, it seems more likely alternative naming systems will emerge alongside it. In form, it will be a plethora of sub-networks, zoned for interest or geography or some other characteristic; sort of red light districts or Basque regions of the global Internet. It will be life outside the manor; rule of law might not exist, but that of course has never prevented people from venturing beyond the village ramparts in the past, why should it be any different in the global village of cyberspace.

Certainly, such a situation breaks the fundamental technical tenant of the Internet that there is a single root to assure universality. But after a period of adjustment, the Internet will still work. And the ICANN-sanctioned Internet will be the brand of choice -- safe for hospitals and Disney and book buying and online banking. It's the "First World Internet," where things work, packets get through, the water's safe to drink.

As per the Internet underworld -- call it Undernet -- while not everyone will be able to access these rogue naming-system networks, frankly, not every one will want to. Some ISPs will have gateways that interface with the Undernet and the Internet, but since there are no standards, don't assume that everything will work as you expect. Email to addresses under the .alt domain only work provided your ISP's .alt database is the same as the one that my ISP recognizes; there may be many. In fact, it's likely that there would be dominant brands of alternative roots.

What's important is that these subnetworks -- the walkie-talkie networks of the Net -- are allowed to emerge. The Internet herself once was such an unruly pioneer; Her tragedy is that she was a revolutionary who succeed, not realizing that a new power simply becomes the new status quo (while her followers seek a perpetual revolution). Will the Internet now embody the same intransigent mentality as the century-old telecom world it overthrew?

In such a world, turning over ccTLDs to national control, the "ancien regime," really won't matter very much. There will be multiple nets on "The Internet (c)" and today's debate over control will be irrelevant; people will want such regulations. It will be socially optimal because the certainty and stability lowers transaction costs.

But getting there means striking a new rapport of force between the Internet community and governments. The Internet community will be losing power and it would be better to get something in return. That could be protections on the freedom of technological development of the Internet, which ironically might someday mean the glorious undoing of today's DNS.

Nationalization is just plain sensible. Does anyone really not agree that the United States government shouldn't have control over the .us domain? And if we're agreed on that, then it would be hypocritical not to universalize that principle to all nations, and strengthen it to call it sovereignty.[9]

Nationalizing ccTLDs may emerge as an elegant way to bootstrap governments into the formal ICANN process other than through the GAC. The current proposal for ICANN reform calls for greater governmental involvement. Thus may be one way to achieve that, and at the same time resolve the debate over who controls ccTLDs and who funds ICANN. At this stage in the Internet's development, many people are willing to sacrifice the technology's fast-paced development and radical innovation in return for stability and predictability, which a more governmental ICANN will mean.

To balance the concerns of technologists who rightly fear the technical underpinnings of the Net may become intractable in this circumstance, the freedom of experimentation and technical evolution that is at the heart of the Net must be preserved, which this policy framework tries to ensure.

 

__________

 

Notes

[1.] Postel unambiguously envisioned that the ccTLD manager, called "trustee" had a dual responsibility to serve "both the nation … and the global Internet community." (RFC 1591 p.3.) More on the issue is included in Note 3.

[2.] For a discussion on how the ccTLD controversies actually strengthens ICANN by treating it as the appropriate entity to deal with the complaints, see Frankel's "The Managing Lawmaker in Cyberspace: A Power Model," cited with sources, hereunder.

[3.] See note 1. Postel described the possibility of re-delegating a domain in opaque terms. In one area of RFC 1591 he says IANA would revoke a domain "only in cases where the designated manager has substantially mis-behaved," but does not elaborate on what is meant by misbehavior. Elsewhere in RFC 1591 it says the a revocation and possible reassignment may happen "In cases when there are persistent problems with the proper operation of a domain." In no place does it state that governments have a special claim to operate their two-letter geographic domain. However, in an IANA document entitled "CCTLD News Memo #1," dated October 23, 1997, Postel sought to clarify the role or "rights" of governments. Although the wording appears ambiguous on the point, confidants of Postel say that it was meant as a nod towards government control over ccTLDs. (That is because the matter was seen as a losing battle: The designate ccTLD manager must reside in the country according to IANA guidelines, and the government of that country could simply pass a law to force the manager to relinquish control.) In section 2, "Policy and Procedures," the document states: "An additional factor has become very important since RFC 1591 was written: the desires of the government of the country. The IANA takes the desires of the government of the country very seriously, and will take them as a major consideration in any transition discussion."

[4.] See Spar.

[5.] Certainly in some cases where the rapport between the ccTLD administrator and the government is already formally established, there would be no substantive "change" per se, such as in many of the OECD economies.

[6.] Admittedly, this has already happened. For instance, it's likely a systemic policy in places like China that restricts freedom of religion and freedom of speech. In other situations, it happens on a specific case basis. For example, in 1999 Slobodan Milosevic lost the election for president of Yugoslavia and in a bid to retain power destroyed radio transmitter of the celebrated independent media outlet B92; in an Internet-era move, he also had its domain deleted from the .YU database, essentially wiping it off the network. (It re-emerged after developers wrote a software extension for browsers that people could download, which used Internet Protocol numbers and bypassed the traditional domain name system.)

[7.] There is a sort of precedence for governments agreeing to technology policies that ultimately mean a major lost of sovereign control. The ITU in the the 1970s passed an agreement that allowed private entities to own telecom infrastructure on foreign soil. It was an era of state-run telecom companies when nearly all international infrastructure was government-owned and cross-border telecom issues were a matter of state-to-state relations. The ITU's policy ultimately allowed for the introduction of commercial satellite communications systems and the global Internet itself.

[8.] This point comes from, and is developed in Frankel's "Accountability and Oversight of ICANN."

[9.] The people who oppose ccTLD nationalization tend to point to authoritarian regimes as places where the ccTLD will be abused against the interests of the local Internet population. But this is a disingenuous, inconsistent argument: it simply rejects national sovereignty over ccTLDs on the basis of a country's politics rather than principle. The complaint, then, with another nation's exercise of sovereignty is the main justification for a naming system outside of governmental control. It's a weak argument. Far better to live smugly with hypocrisy: It's perfectly natural to use case-by-base public policy tools to achieve a better world. We don't live in a relativistic world devoid of values and hierarchies of values. Human freedom in all its manifestations should be the aim of technology in all its forms. The Internet can and should be used to export Western values of freedom and democracy as much as possible. The question, as always, is the means used, and whether a quasi-private system of ccTLD management is the way to accomplish this. I believe it's expendable provided stronger assurances of the sanctity of the Internet's freedom of innovation are established.

 

Sources

Kenneth Neil Cukier. "Australia's Internet Address Change-Over Angers Legal Pros." The Asian Wall Street Journal. 10 September 2001.

Domain Names Supporting Organization of ICANN. "History of the Internet ccTLDs in chronological order of Top Level Domain creation at the Internic." http://www.cctld.dnso.icann.org/ccwhois/cctld/ccTLDs-by-date.html

Tamar Frankel. "Accountability and Oversight of ICANN." Draft version of a report to the Markle Foundation. Spring 2002.

Tamar Frankel. "The Managing Lawmaker in Cyberspace: A Power Model." Presented at the Brooklyn Law School, 1 March 2002.

A. Michael Froomkin. "How ICANN Policy Is Made (II)." ICANNWatch.org, 2001. http://www.icannwatch.org/essays/dotau.htm

Governmental Advisory Committee of ICANN. "Principles for Delegation and Administration of ccTLDs Presented by Governmental Advisory Committee." 23 February 2000. http://www.icann.org/committees/gac/gac-cctldprinciples-23feb00.htm

The Internet Corporation for Assigned Names and Numbers. "ICP-1: Internet Domain Name System Structure and Delegation (ccTLD Administration and Delegation)." May 1999. http://www.icann.org/icp/icp-1.htm

The Internet Corporation for Assigned Names and Numbers. "Model ccTLD Sponsorship Agreement—Triangular Situation (Third Version)." 31 January 2002. http://www.icann.org/cctlds/model-tscsa-31jan02.htm

The Internet Corporation for Assigned Names and Numbers. "Model ICANN-ccTLD Manager Memorandum of Understanding —Legacy Situation (Second Version)." 23 March 2002.

http://www.icann.org/cctlds/model-legacy-mou-23mar02.htm

Milton Mueller. "Ruling the Root: Internet Governance and the Taming of Cyberspace" MIT Press, 2002.

David G. Post. "The Great Internet Give-Away?" (Essay self-published on the Internet by Temple University Law School professor). March 2, 2000. http://www.temple.edu/lawschool/dpost/icann/ccTLD.html

Jon Postel. "Domain Name System Structure and Delegation (RFC 1591)." The Internet Engineering Task Force. March 1994. http://www.ietf.org/rfc/rfc1591.txt

John S. Quarterman. "Haiti, Deja Vu." Matrix Information and Directory Services (MIDS), 1997. http://www.mids.org/mn/712/reht.html

Robert Shaw. "Who's Domain Is It?" in "Coordinating the Internet" (Brian Kahin and James Keller; eds.). MIT Press. 1997. http://people.itu.int/~shaw/docs/dns.html

Debora L. Spar. "Ruling the Waves: Cycles of Chaos, Discovery and Wealth from the Compass to the Internet." Harcourt, 2001.

World Intellectual Property Rights Organization. "WIPO Conference on Intellectual Property Questions Relating to the ccTLDs." Geneva, Switzerland. February 20, 2001. http://ecommerce.wipo.int/meetings/2001/cctlds/index.html

 

Acknowledgements

The author thanks Prof. Tamar Frankel of Boston University School of Law for her valuable insights discussing these issues. Scott Bradner of Harvard University, as always, was a wonderful sounding board on many of the themes. Despite their sound logic, this essay makes a number of points with which they will likely healthily disagree.

 

Author

Kenneth Neil Cukier <kn@cukier.com> is writing a book about the history of Internet governance. He is the former technology editor of The Asian Wall Street Journal in Hong Kong. Previously, he was the European Editor of Red Herring magazine in London and a senior editor in Paris for Communications Week International. He currently lives in Boston, USA.

 

Contact

Kenneth Neil Cukier

88 Charles Street

Boston, MA 02114 USA

Tel: +1 617 732 7734

Email: kn@cukier.com

 

Copyright

Copyright 2002 Kenneth Neil Cukier. This paper may be freely reproduced provided that the author and title of the work is identified.