On April 28, 1998 at 9:30am, David R. Johnson, David W. Maher and Roger Cochetti met with Ira Magaziner, Gregory Chang and Karen Rose and presented the attached document, which was submitted by David Johnson and on behalf of David J. Farber in their individual capacities.

drj
david.johnson@counsel.com

April 28, 1998

Supplemental Comments

Summary

These comments address issues relating to establishment of a globally accountable, flexible, open and legitimate policy-making process for the domain name system. Key questions now presented include (1) how best to assure the development and implementation of sound policies regarding the terms and conditions under which domain names are issued, registered and revoked, (2) how to select board members for a policy oversight organization, (3) how an organization/process focusing on domain name policy should relate to IANA and other internet organizations and stakeholders, and (4) how such a governance organization and its policies should relate to governments and to the laws of particular countries. Because registrants, as an evolving group, have the greatest stake in reliable governance of the domain name system, they should be given the right to select, by proxy, with cumulative voting, the majority of the board of a policy oversight body. Restrictions on excessive board representation of any one region can help to assure appropriate global accountability. Rotating elections and term limits can help to assure continuity and avoid capture by closed groups. The key remaining decision is whether the policy-making body should be separated from the other functions of an institutionalized IANA, or whether, instead, the proposed board structure, with minor modifications, might be adopted as the oversight mechanism for an institutionalized IANA. The resolution of these questions, in the form of establishment of a new organization, could and should receive global ratification by means of decisions by registries, registrars and registrants to participate in the resulting voting processes, organizational and contractual structures and registration systems.

1. Policy with regard to issuance, registration and revocation of domain names can be set on a continuing basis by a Name Council that uses an open deliberation process to establish minimum/maximum terms and conditions to be incorporated, automatically, by reference, in contracts entered into by the registries, registrars and registrants for TLD registrations reflected in the mainstream root servers.

2. The function and authority of a Name Council would be to set domain name policy, not to establish technical standards, to set policy for IP number allocation, or to operate the root server infrastructure.

3. The legitimacy of and support for such policies can best be assured by allowing those who participate in the domain name system to select the Board of the Name Council. Registrants, voting cumulatively by proxy (perhaps in some cases by giving their proxies to their ISPs or others), should select a majority of the voting members of the Board. Registration (and registry) contracts should and would effectively prohibit the artificial registration of names by registrars or others solely to accumulate proxy votes.

4. Registries and registrars, which have special interests and expertise with regard to the registration system, should also select some Board members. No other, artificial, selection of interest groups or private institutions to select a specified number of Name Council Board members is likely to yield widespread support or adequate flexibility over the long term.

5. Institutional flexibility and broad representation can be enhanced by providing for yearly election of one third of the Board, by establishing a 2 three-year term limit for service by individual Board members, and by providing that no more than one third of any category of Board members should come from any particular region.

6. The Name Council should, of course, coordinate with IANA, IETF and other interested parties. IANA, IETF and the President/Executive Director of the Name Council staff should sit as non-voting ex officio members of the Board. (As an alternative, discussed below, the Name Council Board structure, with minor changes, might be adapted as a Board structure for an integrated, institutionalized, broadly accountable IANA.

7. The Name Council should set policy for both gTLDs and ccTLDs, but would limit its policies for ccTLDs over which the country in question has asserted legal authority to those matters required to assure interoperability, security and sound operation of the domain name system. Because some ccTLDs may operate as if they were gTLDs, and because the operations of all TLDs may affect the operations of others, there should be integrated consideration of differing policies applicable to diverse types of TLDs.

8. The Name Council could form subcommittees and should invite broad public participation in its processes. The Council would likely establish a separate subcommittee or policy process to deal with issues relating to ccTLDs, seeking special input from country code registries and governments on these questions.

9. Establishment of the Name Council as a separate not-for-profit corporation should be accompanied by issuance of supporting documents from IANA, POC-CORE, and US, European and Asian Governments. Additional support from and collaboration with WIPO, NSI, trademark groups, public interest groups, and other internet groups should be sought.

10. The Articles of Incorporation of the Name Council should not establish any fixed registration policies. The Articles should require deliberation processes to be as open and transparent as feasible, should encourage appropriate protections of intellectual property and efficient and effective dispute resolution, and should prohibit conflicts of interest on the part of those serving as the Council Board and staff.

11. Voting Board members should serve in their individual capacities, with fiduciary obligations to the internet as a whole, and not as representatives of particular institutions, governments or constituencies.

12. The Council would establish fees to fund its operations on a cost recovery basis. It should of course work closely with IANA to help assure collection of fees required to fund root server operations and other technical and standard setting functions of IANA. (If the Name Council were integrated with the institutionalized IANA, then establishment and collection of fees funding registration and operation of the root servers would be more tightly integrated.)

13. The US Government should consider ratification of collection of past non-cost-based registration fees -- tied to dedication of those revenues to establishment of the new registration policy/governance organization, on the grounds that this will have the effect of reducing future registration fees.

14. The Council should initially be established as a not for profit corporation under US (DC) law, but the Board would have authority and should be required by its charter periodically to reconsider, over a longer term, where meetings would be held, operations located, and, indeed, whether the organization should relocate with the goal of assuring comfort on the part of a global internet constituency that no one country will dominate policy-making for gTLDs.

15. The Council would not purport to have authority to prohibit the establishment of alternative root servers. But the current root server operators, under IANA supervision, would agree to abide by Name Council policies.

16. The Council would indemnify board members and officers and obtain liability insurance, but would otherwise seek no special immunity from antitrust laws. Governments endorsing the Council would agree to harmonize any antitrust reviews of Council policy-making activities.

17. The Council would consider requiring those entering into registration contracts to waive claims based solely on the lawful operation of the policy-making functions of the Board and to submit disputes regarding the registration activities for which it sets policy to approved international arbitration systems.

18. The key question now presented is whether a Name Council, focused primarily on legal and policy questions relating to the contracts entered into among registries, registrars and registrants, should be separated from other functions of IANA that relate more directly to questions of engineering, reliable operation of root servers, and to establishment and registration of other protocols. There are substantial virtues to creation of a protocol stack equivalent of the Treaty of Tordesillas -- letting lawyers/policy-makers do what they do best, with appropriate formal accountability to those whose interests are most directly affected, while also allowing the internet engineering community to continue to develop protocols, architectures, and even arrangements for security and reliability, in a context not so closely tied to "political" processes.

19. Rare irreconcilable differences between a separately institutionalized Name Council and IANA could be resolved by allowing each entity to select a delegate, to have each of these two delegates choose a third neutral presiding officer, and to give this three person tribunal (whether as a standing body or as an issue specific dispute resolution mechanism) the power to resolve disputes and to veto, at the request of one of the parties, the proposed policies or actions of the other.

20. If a separate Name Council were established as a not for profit corporation initially located in the U.S., it should have a Board consisting of 3 non-voting ex officio members (1 selected by IANA, 1 selected by IETF, and 1 being the President/Executive Director of the Council), 3 voting members selected by licensed Registries, 3 voting members selected by licensed Registrars, and 9 voting members selected by Registrants (by voting proxies, via their ISPs or others), with cumulative voting (to protect the interests of substantial minorities).

21. Members of the Board would serve for 3 year terms, with one third of the Board elected each year after the initial Board is selected. No Board member would be eligible to serve for more than two terms. No more than 1 Board member selected by Registries, nor more than 1 board member selected by Registrars, nor more than 3 board members selected by registrants, could come from the same geographic region. At least one of the Registry Board members would be required to come from a gTLD and at least one would be required to come from a ccTLD registry.

22. If an integrated, institutionalized IANA were preferred, the Board structure suggested for the Name Council should be adopted as the structure for the institutionalized IANA Board, with minor changes, and the Name Council should be treated as a separately organized function within that larger structure. The Board should still have a majority of members selected by proxy by registrants, because registrations best reflect the continually changing constituency of the internet -- and because no artificial selection of factions or existing organizations can provide such legitimacy and flexibility. But some additional members should be added to reflect the special interests of the bodies that allocate IP addresses (perhaps a rotating membership for the regional bodies that administer this function, starting with a non-US based member). And some additional representation should be given to the community that develops protocols and operates the root servers (perhaps giving the member selected by IETF a vote and adding a member selected by any subsidiary organization overseeing operation of the root servers).

23. The choice regarding whether to integrate the Name Council as a subsidiary part of an institutionalized IANA, or to separate policy/contract governance for domain name registration from the distinct problem of institutionalizing and supporting the engineering and operational functions traditionally performed by IANA, should be made, in the first instance, by IANA and by the US Government acting in its capacity as current funder of IANA and supervisor of the contracts under which major gTLDs are registered. Once either choice is made, however, the immediate need will exist to obtain explicit consent and support from global stakeholders.

24. Because the contractual act of registration represents the most tangible form of such consent, and because it also inherently identifies those who collectively have the greatest stake in establishment of sound policies over time, either choice should be followed promptly by creation of a Board structure that gives predominant representation to registrants. Proxy voting by such registrants, and registration renewals, along with election of Board members by registries and registrars, will provide a means for global ratification and accountability of the Name Council structure. Any registrants who disapprove of the new policy-making structure would not be required to continue to use or pay for prior registrations, nor would they be prevented by their current registration contracts from establishing alternative root servers with associated policy-oversight mechanisms.

25. These ideas should be discussed promptly with a widening circle of internet participants and others whose interests are affected. Absent intense objections from substantial portions of the participants on the net, prompt steps should be taken to establish the new organization(s) and governance structures described above and to secure issuance of appropriate supporting and transition documents.

David R. Johnson

David J. Farber