INTERNATIONAL  TELECOMMUNICATION  UNION

Council 2000

Report by the Secretary-General

Management of Internet Domain Names and Addresses

Comprehensive Version — Part II
of Council Document C2000/27-E

Table of Contents

1.          Background

2.          ICANN

2.1.       ICANN’s Structure

2.1.1.    Board of Directors

2.1.2.    Supporting Organizations

2.1.3.    Advisory Committees

2.2.       Accreditation of Registrars

2.3.       NSI’s Recognition of ICANN

2.4.       Domain Name Dispute Resolution Framework

3.          New Top Level Domain s

3.1.       Geopolitical Top Level Domains

3.1.1.    Allocation of Top Level Domain for ISO 3166 “Occupied Palestinian Territory”

3.1.2.    Proposed European Union Top Level Domain “.eu”

3.2.       Proposed New Generic Top Level Domains

4.          ICANN Role Issues

4.1.       US Government Contractual Relationship with NSI and ICANN

4.2.       General Accounting Office Review

4.3.       Management of the Authoritative Root Server

4.4.       US Anti-Cybersquatting Legislation

5.          ITU Activities Related to ICANN

5.1.       The Governmental Advisory Committee

5.2.       Protocol Supporting Organization

5.3.       .INT Top Level Domain Management

5.4.       Protection of the ITU’s Names and Acronyms in gTLDs

6.          Conclusions

1.     Background

Since the adoption of Resolution 102 on “Management of Internet Domain Names and Addresses” (Minneapolis, 1998)[i], and the ITU activities described last year in Council Document C99/51,[ii] significant debate continues on the evolution and management of the Internet Domain Name System (“DNS”). In particular, international policy development related to the introduction of competition, intellectual property dispute resolution, and the addition of new top-level domains continues to be the catalyst of change. This has led to significant changes in Internet administration activities and increased governmental attention.

This problem, in Internet terms, has had a long and contentious history. The decisions defining the current set of top level domains were essentially made in the mid-1980s, when the Internet was a relatively small research and education network closed to commercial uses. However, as the Internet was increasingly commercialized in the early 1990s, the forces of business supply and demand — and intellectual property, explicitly trademarks — began to have a major impact on the DNS. This has primarily had an effect on “generic” top level domains (“gTLDs”) [iii], such as .com, .net, and .org, representing the largest percentage of global DNS registrations. It also has had a growing influence on the 244 country code top level domains (“ccTLDs”), such as .be for Belgium, .mx for Mexico, and .cn for the People’s Republic of China.[iv]

Since 1993, originally through a “cooperative agreement”[v] with the US National Science Foundation (“NSF”), gTLDs have been managed by Network Solutions Incorporated (“NSI”)[vi] of Herndon, Virginia, USA. In the early 1990’s, NSF and NSI were struggling with the growth of domain name registrations.[vii] NSF reacted to this in 1995 by allowing NSI to institute a US$ 50 a year fee for gTLD domain name registrations[viii] — later lowered to US$ 35 a year.[ix] As of May 2000, there are more than 14 million active domain name registrations under NSI-managed gTLDs.[x]

In the mid-1990’s, there was considerable dissatisfaction with what was perceived to be a monopoly in gTLD registration services. Reacting to this, the Internet Assigned Numbers Authority (“IANA”),[xi] historically recognized by the Internet Engineering Task Force (“IETF”) and others as having DNS oversight, tabled several proposals to introduce competition. These proposals were initially based on parties administering new gTLDs, like NSI, at both the registry (back-end database) and registrar (customer interface) level.

From a technical standpoint, adding new gTLDs is not complicated. However, it raises some very complex international public policy questions:[xii]

§         Who controls the Internet root server system?

§         Who has policy authority to add names to the Internet root server system?

§         How many new gTLDs should be or could be added?

§         What names should be added?

§         How does one decide who gets to administer a new gTLD?

§         What is the economic and contractual relationship between the central registry and multiple registrars?

§         Should registrations be open to anyone or be restricted to special communities?

The relation between domain name registrations and trademark rights made the issue of new gTLDs even more contentious, as many trademark owners opposed the addition of any new gTLDs until regulatory mechanisms or dispute resolutions mechanisms were put into place to link domain name registrations to trademark protection.

In 1996, representatives from the Internet Society, IANA, the Internet Architecture Board (“IAB”)[xiii], the US Federal Networking Council (“FNC”),[xiv] the ITU, the International Trademark Association[xv], and the World Intellectual Property Organization (“WIPO”)[xvi] formed the International Ad Hoc Committee (IAHC),[xvii] in an attempt to address a major evolution of the DNS. In early 1997, the IAHC released its report on “Recommendations for Administration and Management of gTLDs”.[xviii] The plan proposed, what was then, radical new concepts. For example, gTLDs would be “shared” among globally-distributed competing registrars[xix] and a new uniform dispute resolution process would be designed to deal with intellectual property conflicts with domain names.[xx] Perhaps even more importantly, the valuable registry function would be contracted out to a non-competing neutral operator by a consortium of gTLD registrars.

The contours of this plan were defined in an instrument called the Generic Top Level Domain Memorandum of Understanding (“gTLD-MoU”)[xxi] for which ITU acted as depository to signatories. Reacting to debate surrounding this ambitious plan, the US government released a “Green Paper” in January 1998 outlining a “Proposed Rule” where the US Department of Commerce (“DOC”) would itself license five new Internet top level domain registries. Following public comment, the US government issued a “White Paper”[xxii] or “Statement of Policy” in June 1998 that backed away from “substantive regulatory provisions” and defined broad principles and procedures that it would use to transition “from its existing management role” to a “new non-profit corporation”. The White Paper required that this new corporation be incorporated in the United States.[xxiii]

Several months later, in October 1998, the Internet Corporation for Assigned Names and Numbers (“ICANN”[xxiv]), a California-based non-profit corporation was formed (according to its web site) “to assume responsibility for the IP address space allocation, protocol parameter assignment, domain name system management, and root server system management functions previously performed under U.S. Government contract by IANA and other entities”.[xxv] In October 1998, the Internet Assigned Numbers Authority (“IANA”) made a submission[xxvi] on behalf of ICANN that it be recognized as the new corporation discussed in the White Paper.[xxvii] The following month, a Memorandum of Understanding was signed between the US Department of Commerce and ICANN.[xxviii] In February 1999, ICANN was designated to NSI (by DOC) as the new corporation described in the White Paper (with the qualifier “for certain purposes”).[xxix]

2.     ICANN

Since its creation, ICANN has been active on several fronts. The first was establishing its decision-making procedures and recognizing its “supporting organizations”. The second was accrediting new registrars who would offer registrations in NSI’s new Shared Registration System for the existing gTLDs: .com, .net, and .org.[xxx] The third was finalizing a dispute resolution framework to process and resolve disputes over domain names. The fourth was developing contractual relations with NSI who originally would not recognize its oversight. These issues are briefly discussed below.

2.1.               ICANN’s Structure

ICANN has a general structure comprised of a “Board of Directors”, “Supporting Organizations”, and “Advisory Committees”, as discussed below. A graphic representing ICANN’s structure can be found on the ICANN web site.[xxxi] ITU’s particular role in the ICANN structure is discussed in Section 5 .

2.1.1.         Board of Directors

The ICANN Board of Directors (“BoD”) has nineteen seats. Nine “at-large” directors are to be elected by an as yet unfinalized process involving ICANN’s planned “general membership”.[xxxii] Three “Supporting Organizations” have already selected another nine directors. An ex-officio President/CEO also sits on the Board. ICANN’s initial set of directors plan to leave within the 2000/2001 time frame.

2.1.2.         Supporting Organizations

According to ICANN, the definition of its three Supporting Organizations are: [xxxiii]

• the Address Supporting Organization[xxxiv] (“ASO”): concerned with the system of IP addresses, (e.g., 128.9.128.127), that uniquely identify the Internet’s networked computers.
• the Domain Name Supporting Organization[xxxv] (“DNSO”): concerned with the Internet DNS, the system of names commonly used to identify Internet locations and resources.
• the Protocol Supporting Organization[xxxvi] (“PSO”): concerned with the assignment of unique parameters for Internet protocols, the technical standards that let computers exchange information and manage communications over the Internet (see Section 5.2 for discussion concerning ITU’s role in the PSO).

2.1.3.         Advisory Committees

The ICANN Structure also provides for “Advisory Committees”.[xxxvii] There are currently four of these including a Governmental Advisory Committee (“GAC”) open to all national governments. GAC membership is also open to “Distinct Economies” as recognized in international fora, and multinational governmental organizations and treaty organizations, at the invitation of the GAC Chair, or at the invitation of the ICANN BoD.[xxxviii] For discussion of the GAC and ITU’s role, see Section 5.1 .

2.2.               Accreditation of Registrars

The Shared Registration System (“SRS”) is a domain name registration system for competing registrars in the .com, .net, and .org top level domains. The SRS was created in the spring of 1999 through an initiative of the United States Department of Commerce under an amendment to its cooperative agreement with NSI. Under this shared registration system, competing ICANN-accredited registrars register domain names utilizing one central registry maintained by NSI.[xxxix] For each registration, NSI is payed a fixed fee for each domain name registered by each registrar. As of May 2000, over one hundred registrars have been accredited by ICANN.[xl]

The concept of  “shared” gTLDs where there is a division between “registry” functions performing back-end database functions and “registrar” functions that deals directly with customers was initially proposed by the IAHC in 1997. At that time, NSI had rejected the concept saying that it was “unworkable.”[xli]

2.3.               NSI’s Recognition of ICANN

Following differences of opinion concerning NSI’s recognition of ICANN, a complex set of contractual agreements was negotiated that involved NSI, DOC and ICANN.[xlii] The key provisions set forth in this agreement include:

• NSI recognized ICANN and agrees to operate the .com, .org and .net registries in accordance to a Registry Agreement between ICANN and NSI and future “consensus policies” adopted by ICANN;
• NSI agreed to become an ICANN accredited registrar for the .com, .org, and .net domains;
• NSI agreed to participate in the funding of ICANN through registry and registrar fees.

A fact sheet on the ICANN web site explains these agreements.[xliii]

A key part of the above agreement is that NSI continues to operate the existing gTLD registry for .com, .net, and .org and also act as a registrar. Their agreement with the US government and ICANN lasts until at least November 10, 2003. In the circumstance that NSI divests itself of either the registry or registrar side of the business within 18 months of the original agreement date (in other words, before April 10, 2001), the agreement is extended for another four years until November 2007.[xliv]

2.4.               Domain Name Dispute Resolution Framework

Following the release of the US government’s “White Paper”,[xlv] the World Intellectual Property Organizations (“WIPO”) conducted an Internet Domain Name Process that studied the relationship between intellectual property and trademarks. WIPO delivered its Final Report to ICANN[xlvi] with recommendations for a uniform dispute resolution policy to be followed by all gTLD registrars. After consultation with registrars and several committees, ICANN staff prepared a Uniform Domain Name Dispute Resolution Policy (“UDRP”[xlvii]), which was implemented in December 1999. As of May 2000, more than 850 proceedings[xlviii] involving disputes over more than 1’200 domain names have been filed. The majority of cases have resulted in the affected domain name being transferred to the complainant.

ICANN’s UDRP is an iteration of the unified dispute resolution framework proposed for gTLDs first developed by the IAHC, also in cooperation with WIPO.[xlix]

3.     New Top Level Domains

3.1.               Geopolitical Top Level Domains

Historically, all geopolitical top level domains have been based on the two letter (“alpha-2”) code set in the ISO 3166-1 Standard[l] (e.g., .fr for France, .cn for the People’s Republic of China). Two significant developments vis-à-vis geopolitical top level domains have taken place in the last year.

3.1.1.         Allocation of Top Level Domain for ISO 3166 “Occupied Palestinian Territory”

In March 2000, following the designation in the ISO 3166 Standard of  “PS” as the two-letter code representing the ISO 3166-1 entitled “Occupied Palestinian Territory”, ICANN allocated the corresponding Internet top level domain “.ps”.[li]

3.1.2.         Proposed European Union Top Level Domain “.eu”

In February 2000, the European Commission published a working paper on the potential creation of a European Union-oriented top level domain “.eu”.[lii] A public consultation process followed this. The responses,[liii] along with an analysis,[liv] are available on a Commission-related web site.

Currently, the allocation of .eu would require a decision by both IANA/ICANN and the US Department of Commerce (see Section 4.3 ). As of May 2000, a formal request to ICANN to allocate .eu has not been made. Allocation of .eu would create an unusual precedent because “EU” is not officially part of the ISO 3166-1 standard but rather in an “exceptionally reserved” list of the ISO 3166 Maintenance Agency. Therefore, its allocation would contravene current stated ICANN policy.[lv]

3.2.               Proposed New Generic Top Level Domains

In April 2000, the DNSO management body, the “Names Council”, made an imprecise recommendation on new gTLDs that said: “a limited number of new top-level domains be introduced initially and that the future introduction of additional top-level domains be done only after careful evaluation of the initial introduction”.[lvi] ICANN’s BoD are expected to adopt a policy on introduction of new gTLDs at its meeting in July 2000 in Yokohama, Japan.[lvii]  NSI has notably made a separate and more specific proposal to the DNSO Names Council.[lviii] In June 2000, ICANN released a project plan for introduction of new gTLDs with a November 1, 2000 planned date for the announcement of new TLDs.[lix]

4.     ICANN Role Issues

4.1.               US Government Contractual Relationship with NSI and ICANN

The US government indicated in the White Paper its plan to withdraw from a DNS oversight role “in no event later than September 30, 2000”.  However, in the NSI agreement with DOC that provides for its recognition of ICANN (see Section 2.3 ), the US government has a contractual relationship with ICANN and NSI which lasts until at least November 10, 2003. In the circumstance that NSI divests itself of either the registry or registrar side of the business within 18 months of that date, this agreement extends for another four years until November 2007.[lx] This agreement provides for the possibility of ICANN’s authority being terminated and DOC assuming policy-setting roles for the .com, .net and .org registry services.[lxi] Considering NSI’s still extremely dominant position, it is possible that there will be further challenges to ICANN if and when further attempts to devolve NSI’s position are made.

4.2.               General Accounting Office Review

At the time of preparation of this report (May 2000), the U.S. General Accounting Office (“GAO”)[lxii], an investigative arm of the US Congress, is reviewing DOC’s role in its relationship to ICANN and its related authority.[lxiii] Its report is due at the end of June 2000. This is the latest in a series of US Congressional enquiries and hearings related to the DNS, ICANN and the Department of Commerce. It is unclear as to its significance. However, it is notable that the GAO has been specifically requested to review “whether the Department [of Commerce] has the legal authority to transfer control of the authoritative root server to ICANN” (see below, Section 4.3 )

4.3.               Management of the Authoritative Root Server

Management control over the authoritative root server represents considerable influence over the Internet and DNS. The root server contains the master entries for all Internet top level domains including gTLDs and ccTLDs. For example, removal of a ccTLD from the authoritative root server would be quasi-equivalent to disconnecting a country from the Internet.[lxiv]

In a fact sheet on the agreements between ICANN, US DOC, and NSI discussed in Section 4.1 , the US DOC has indicated that: “The Department of Commerce expects to receive a technical proposal from ICANN for management of the authoritative root and this management responsibility may be transferred to ICANN at some point in the future. The Department of Commerce has no plans to transfer to any entity its policy authority to direct the authoritative root server.”[lxv] It is not clear how this last statement should be interpreted.

4.4.               US Anti-Cybersquatting Legislation

In November 1999, the US Anti-cybersquatting Consumer Protection Act (“ACPA”) was signed into law. The US Administration had opposed the anti-cybersquatting legislation because it believed the domain name dispute resolution issues should be addressed in ICANN. However, to make the bill veto-proof, the US Congress attached it to two other pieces of desired legislation.

A particularly interesting provision is that the US Congress, recognizing that millions of gTLD domain holders are outside the United States, included a provision for an “in rem” jurisdiction over the domain names of persons who are not subject to jurisdiction of a US court. The relevant text says:

“(C) In an in rem action under this paragraph, a domain name shall be deemed to have its situs in the judicial district in which--

(i) the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located; or

(ii) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court.”

This means that based on the location of the .com, .net, and .org registry in the United States, the domain name of any non-US registrant in current gTLDs can be made subject to a U.S. court. This has an interesting implication for future expansion of DNS. For example, when a new gTLD registry is established outside the United States (as recently proposed by NSI for .shop), 58 should the physical location of the registry imply that the legislative body of that country can assert “special” jurisdiction over the domain names in that database even if registrars and registrants are distributed globally? It is also unclear as to what is meant by “domain name authority” referenced above and whether it is a specific reference to ICANN, a California-based corporation.

5.     ITU Activities Related to ICANN

The ITU currently plays a direct role in two parts of the ICANN structure: the Governmental Advisory Committee and the Protocol Supporting Organization. Also of direct interest to ITU is the .int top level domain and further work on domain name dispute resolution with regard to the Union’s names and acronyms. These issues are discussed below.

5.1.               The Governmental Advisory Committee

It is unclear to the ITU Secretariat as to the impetus for the establishment of the GAC in ICANN’s bylaws. The US government’s view in the White Paper indicated that: “the U.S. continues to believe…that neither national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses”. It also specified, in its requirements for the bylaws of the new corporation, that they should “restrict official government representation on the Board of Directors without precluding governments and intergovernmental organizations from participating as Internet users or in a non-voting advisory capacity.” Apart from specifically barring government policy makers from the BoD, certain ambiguity still remains. For example, in the GAC, interventions are clearly made in an official capacity on behalf of sovereigns.

There are a range of views on the appropriate level of governmental involvement in management of Internet names and addresses. Some administrations are clearly comfortable with the “self-regulatory” approach embodied by ICANN and are willing to provide a supportive secondary role to industry private-sector self-regulation. Others believe that certain DNS issues (e.g., ccTLDs) relate to national sovereignty, do not require involvement of ICANN, and are subject only to domestic arrangements. Others appear to be somewhat circumspect in entrusting ICANN with responsibilities they consider more appropriately exercised through the more formal framework of multilateral organizations (e.g., intellectual property issues – see Section 2.4 ). Generally it can be said that there is increased attention by governments in the management of Internet names and addresses – particularly where there is an overlap with other public policy issues (e.g., intellectual property, promotion of competition, consumer protection, telecommunications regulation).

The ITU Secretariat has to date participated in four GAC meetings, coinciding with ICANN meetings. The agenda, minutes, Chair’s report, and Media Communiqué for all GAC meetings are available on the GAC web site.[lxvi]

Currently 25-30 governments and multilateral organizations, representing a large percentage of current Internet users, actively participate in GAC meetings. There is some concern over the lack of broader participation by governments, especially developing countries.

The most significant work of the GAC to date directly concerns ITU Member States. It is the preparation of a documented entitled “Principles for the Delegation and Administration of Country Code Top Level Domains” which has been communicated to the ICANN BoD.[lxvii] This document declares that the “ultimate public policy authority for the administration of ccTLDs rests with governments and public authorities”. It is intended by the GAC to guide the replacement of the policies described in ICANN’s ICP-1: “Internet Domain Name System Structure and Delegation”[lxviii] based on a 1994 Internet standard, RFC 1591.[lxix]

In response to this and other proposals, the ICANN BoD passed a resolution at their March 2000 Cairo meeting on “ccTLD Administration and Delegation Policies” directing that new “draft language for contracts, policy statements, and/or communications” be prepared.[lxx] It is not clear whether this represents an endorsement of the GAC document by the ICANN BoD.

In general, ICANN’s BoD have exhibited a certain reserve about the advice of the GAC. While no clear differences of opinion have emerged, if they do, it may lead to a re-evaluation of the GAC’s usefulness or advisory role. In this respect, it is a unique experiment that intergovernmental-type policy formulation (which GAC activities appear to resemble) requires further endorsement by a private corporation’s BoD. Therefore, the exact significance of GAC findings and advice, considering its advisory role in ICANN’s bylaws,[lxxi] is somewhat ambiguous. Clearly there are differing views on this topic. As one example, the European Commission has put forward the need for “necessary governmental oversight of ICANN, that should be exercised on a multilateral basis, in the first instance through the Governmental Advisory Committee”.[lxxii]

5.2.               Protocol Supporting Organization

In July 1999, a Memorandum of Understanding was signed between ICANN and Internet-related standardization organizations to create ICANN’s Protocol Supporting Organization.[lxxiii] The signatories include the ITU, Internet Engineering Task Force (“IETF”), World Wide Web Consortium (“W3C”) and European Telecommunication Standards Institute (“ETSI”). ITU’s participation is coordinated by the ITU‑T. One role of the PSO is to appoint 3 directors to ICANN’s BoD.

In general, technical coordination between standards organizations takes place, as needed, on a bilateral basis. For example, in a related activity in January 2000, ITU-T Study Group 2 hosted an “IP-Telecoms Interworking Workshop” focusing on Numbering, Naming, Addressing and Routing (“NNAR”). This workshop included the participation of IETF leadership and resulted in an agreement on fourteen issues to be addressed either by the IETF, the ITU, or jointly by the IETF-ITU. These issues and their disposition are available on the ITU-T web site.[lxxiv] Of notable interest are draft proposals that would provide mapping between the Internet Domain Name System (“DNS”) and the ITU-T E.164 numbering plan. This may imply that the ITU-T may need to play a coordination role for DNS zones that parallel its current top-level E.164 management responsibilities.[lxxv]

5.3.               .INT Top Level Domain Management

Following last year’s Council endorsement of ITU management of the .int top level domain (originally intended for intergovernmental organizations), there has been little progress in discussions with ICANN and the US government (who have policy authority over the Internet DNS root server[lxxvi]) in implementing this decision. One barrier has been the existence of Internet infrastructure related domain names under the .int top level domain which required additional discussions with the Internet Architecture Board (“IAB”). Following further discussions between the IAB and the US government, the Secretariat’s understanding is that “.arpa” (an acronym for the US “Advance Research Projects Agency”), a long existing but little-used top level domain, is to be reserved for future Internet infrastructure purposes (managed directly by ICANN). Therefore, there may be a migration of certain Internet infrastructure related domain names under .int to .arpa. Although the Secretariat’s understanding is that .int will be eventually transferred to the ITU for management, there are no details from ICANN or the US government on how or when this will occur.

5.4.               Protection of the ITU’s Names and Acronyms in gTLDs

As noted last year in Document C99/51, the ITU has provided comments to WIPO pertaining to the protection of the Union’s names and acronyms in all gTLDs. Specifically, “recognition should be given to the protections afforded to the identifiers of these organizations under Article 6ter of the Paris Convention for the Protection of Intellectual Property (1967) or the corresponding provision of the TRIPS Agreement.” [lxxvii]

The Union’s remarks were reflected in a recommendation in the WIPO Final Report that said: “It is recommended that ICANN initiate a process designed to address the problem of the abusive registration of the names and acronyms of international intergovernmental organizations…before the introduction of any new gTLDs.”[lxxviii] To date, ICANN has not taken any related action.

It is unclear in which forum further work on the intersection of intellectual property and domain names will take place. There is a possibility that, at the request of some Member States, WIPO could undertake an additional study on domain name dispute resolution issues (e.g., including the names and acronyms of intergovernmental organizations, personal names, and geographical and place names). However, it is not clear whether any findings or recommendations would be submitted to WIPO Member States, to ICANN, or to both.

6.     Conclusions

In the year after Council 2000, there are at least two major issues that make it uncertain whether ICANN will be more successful than previous efforts in significantly evolving the DNS. The first is the long-delayed question of how and when new top level domains will be added — and who will have rights to control the registry databases that keep track of new domain names underneath them. The second is whether NSI[lxxix] will divest control of its registry or registrar roles (or neither) within the next year as discussed in Section 4.1 . The answers to these questions will have a major impact on both the DNS and the future of ICANN.

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