International Studies Association

Panel on Cyberhype or the Deterritorialization of Politics? The Internet in a Post-Westphalian Order

Minneapolis, March 21, 1998

 

International Public Regulation of the Internet: Who Will Give You Your Domain Name?

John R. Mathiason and Charles C. Kuhlman*

New York University

 

Introduction

The question of how to regulate the internet has gradually slunk its way into the discourse of international relations. A "green paper" issued by Ira Magaziner, the Internet specialist in the Clinton Administration in the United States, deals with principles of internet governance. The call by the European Union for an international ministerial-level conference to discuss an Internet Charter is another recent manifestation.

Referring to the issue of encryption, The Economist editorialized:

Governments are schizophrenic about the Internet. Most are genuinely excited by its phenomenal growth and the opportunities it offers both to business and education. They also sense that any country attempting to hold it back risks looking foolish and technophobic. On the other hand, they find the Internetís libertarian culture and contempt for national borders subversive and frankly terrifying. Although much of the popular demand for Internet regulation comes from the ease with which it allows the distribution of pernicious content, a much more important debate about the future of the wired world is hotting up.

The phenomenal growth of the Internet, coupled with its borderless character, has posed the question of international governance in unusually stark terms. In a real sense, the Internet is a virtual global commons, a common heritage, an almost classic international public good. Its governance, therefore, is a matter of international public concern.

Attempting to answer the question of how to govern the Internet takes us into somewhat uncharted water. Since the Internet is not physical space, many of the previous precedents do not apply. As a result, proposals for arranging governance of the Internet include alternatives that range from pure-market governance through command-style approaches, with the probable outcome somewhere in between. It involves, inevitably, international organizations and the nature of their role, as opposed to States and to civil society, has become one of the issues of contention.

The first issue area in which the debate has begun is a seemingly technical one: the mechanics of assigning and registering domain names, the addresses that are used for communicating across the internet. Here, alternative approaches are set out clearly, as are the actors in the process.

These actors include the old Internet community, an informal network of scientists and computer technicians who established and nurtured the net, but who have now been overtaken by its growth. They include the large and small corporations who provide the services that make the internet run or who propose to use it for business. They include national governments, who want in some way to protect their citizens, especially the United States, which still has a hegemonic role in the Internet. And they include specialized agencies of the United Nations who see the internet and its regulation as their domain.

This paper analyzes the lessons being learned for governance of the internet from the on-going battle over who will assign and register domain names. More broadly, it draws conclusions about the role of the international public sector in governance of the increasing stock of international public goods.

Where do domain names fit into the larger internet scheme of things?

To understand the domain name controversy, it is necessary to understand the key elements of how the Internet is run.

Technology and names

The invention of packet switching initiated a grand paradigm shift in the technology of information. Previous forms of electrical communication were based on a circuit connection: one sender, one message, one link, one receiver. Two tin cans connected with a taut string are an apt (and still workable) analogue. Information can be conveyed over a circuit link by varying the electrical characteristics of the line such as the voltage or the frequency. As early as 1870, the utility of a single circuit was expanded through multiplexing, the simultaneous transmission of several messages over the same pair of wires. Some of Thomas Edisonís earliest and most profitable patents were devoted to multiplexed telegraphy . Still, the messages were delivered from one point to just one other point.

Switching provided the answer to the problem of binary connectivity by connecting a pair of wires from point A to point B or C or D. . . . As the demand for connections grew, manual switching by banks of operators was superseded by complex mechanical switches beginning in the late 1890s and finally with computerized switches in the 1950s. Although switching systems matured to the point that hundreds of millions of connections a day could be set up and maintained by the telephone network, their essential characteristic remained a continuous full-time pathway between two points at any one time.

Packet switching changed the model. The communication, once put into digital form, was divided into small well-defined groups of coded data, each with an identifying numerical address. Anything that can be digitized can be sent as a packet. To the Internet, a packet is a packet is a packet, whether it carries numbers, words, digitized sounds or digitized pictures. Now it became possible, and the U.S. Defense Departmentís Arpanet actualized the possibility, to send an unlimited number of packets over the same circuit with different addresses. Routers, rather than switches, became the key to delivering the packets to the intended destination. Controlled by software and microprocessors, the router inspects the address of a packet and sends it on its way on a full-time circuit to another router to an eventual end point.

The designers of the Arpanetís successor, the Internet, reserved 32 bits for the packet address (to be superseded by 128 bits in Internet Protocol version 6 [Ipv6]) which are represented in decimal notation in a format xxx.xxx.xxx.xxx, where each group of xís can range from 0 to 256. The innovation of the World Wide Web was to provide synonyms for the somewhat inscrutable digit strings of the actual address by a mechanism known as a Domain Name Server (DNS). The actual addresses of the packets remained the digit strings but they were replaceable by more or less scrutable alphabetic equivalents stored on a DNS server file which permitted the lookup of the alphabetic name from a numerical address and vice versa. Thus was born the web site name, a new entity and a new property right in new and legally ambiguous sphere.

The telephone system addressing system started in the simplest possible fashion with Sally asking an operator to connect her to Harry. Under the direction of the Bell System affiliated companies and by agreement with the non-Bell operating companies, the U.S. the present ten digit area code-exchange-line number system evolved over decades into a national standard. By contrast, the Internet addressing scheme was designed from its day of creation by engineers and scientists as a logical and comprehensive construct to meet their needs for low cost data communication. The integrity of the scheme was guaranteed by voluntary agreements among engineers in non-commercial groups organized under the rubric of the Internet Engineering Task Force (IETF) motivated by nothing except the workability of the structure.

The alphabetic names associated with numeric addresses were divided into domains, a limited typology of alpha addresses that enabled the routers to do their lookups efficiently. To find the numeric twin of the Internet address of "NYU.EDU," for instance, the router need not search through every entry in its address table, just the addresses ending in ".EDU." These suffixes as the first level of searching and selecting are known as top level domains: the current set includes .COM, .MIL, .ORG and .NET, corresponding to net addresses for entities in commercial, military, non-profit and network administration endeavors.

Internet addresses are conceptually very different from telephone numbers. In the U.S., Canada and the Caribbean, most area codes (technically NPAs--Numbering Plan Area") denote a geographic place with boundaries identifiable with governmental jurisdictions: nations, states, cities. The exchange part of the phone number is traditionally associated with a specific place with a street address, the central office, from which the wires emerge to connect the telephone user over the "last mile" to the network. The place-centered nature of the phone system numbering plan is beginning to break down with the rise of wireless cellular systems, the widespread use of ghostly 800 and 888 numbers which may be answered here one minute and there the next. Nonetheless, jurisdiction can be established in all cases. Internationally, the country code, city code numbering system links phone number to place to jurisdiction.

Internet addresses have no fixed location. They are purely conceptual. There is no central office. The routers which direct packets to the packet address at rates between 100,000 and 500,000 a second can know only the next logical point in a routing table and which outbound circuit is available to carry the packet. Packets are free to traverse the globe on countless circuits to geographically indeterminate end points. The technology provides assurance that the packets are reassembled in the right order and are very likely not corrupted by data errors.

A further distinguishing characteristic of Internet addresses is that neither the sender nor the receiver of a packet is a paying customer for the packet. Telephony requires two paying customers to complete a call, each of whom is a paying for the privilege and each of whom has at a minimum a billing address and usually a street address in a city, a state/province and country. The Internet senders and receivers are inherently tied neither by the billing process nor the technology to place.

We have identified the technical underpinnings of novel realities which have led to major policy debates which are far from resolved. From inside the Internet, names for addresses are structured but purely arbitrary, the technology is indifferent to content, and the sender/receiver dyad is unlocatable in the conventional sense.

 

Names/Sounds/Pictures/Words/Ideas

Names have value; legal ownership and the right of exclusivity for patents, trademarks, service marks and copyrights for sound/picture/literary content are well-established in Western law. The treaties underlying the World Intellectual Property Organization (WIPO) have extended the principles, if not the practices, to a wide spectrum of countries. A substantial body of commercial law and practice guarantees that recourse is available to a party which believes its property rights have been infringed upon. A variety of adjudicatory mechanisms are available to resolve disputes and provide redress at a national level.

The Internet poses a challenge due to its indeterminate ubiquity. Infringement becomes possible from any corner of the globe, that is, from any address on the Internet. If content can be digitized in can be not only pirated but it can also be disseminated globally with no impediment. No court, mediation board or arbitrator can be presumed to exist with authoritative jurisdiction even if the infringer can be definitively identified. The efforts of the United States to halt the active commerce in pirated compact disks and software in China illustrative of the difficulty of maintaining ownership of intellectual content. Absent any overarching jurisdiction, diplomatic pressure had to be brought to bear in a bilateral context of numerous other foreign policy issues. The Internet raises the very real specter (for the owner of content) of massive evaporation of assets.

The Internet is not an inherently broadcast medium although it shares the ability of radio and television to simultaneously reach many people through Web sites either sought deliberately per occasion by the receiver (a "surfer") or "pushed" by a Web application such as Pointcast. With the partial exceptions of short-wave radio and the direct broadcast satellites, the content of radio and television (including cable TV) broadcasting since Marconi has been firmly under the thumb of governmental authority under the rationales of orderly spectrum allocation (U.S.), revenue generation twinned with cultural uplift (U.K.) or outright thought control. The potentially universal accessibility of content via the Web upsets the traditional regulatory model. In its blithe way, the Web does not care what it carries: hate, love, pornography, fraud, lies, truth, scholarship, charlatanry are all the same in the stream of bits and all equally accessible. The efforts of the German government to shut down Nazi-leaning, anti-Semitic Web sites by penalizing the Internet service provider was a kind of desperate grasping for any available handle since the real purveyors were to difficult to reach. The ease of establishing a Web site provides assurance that the extinction of one offender will not prevent recrudescence. On the horizon are technical developments which will make the Internet much more like a broadcast medium and even more subversive of government control: vastly increased circuit capacity through a technology known as "wave division multiplexing" and a redesign of the underlying Internet protocols to permit simultaneous transmission of the large amounts of data required for images (one such effort is known as MBONE).

 

Governance problems resulting from the nature of the Internet

The nature of the Internet raises problems of governance that are clearly distinct from matters falling within a national domain as well as most other international issues. These problems shape the debate about domain names as well as other Internet issues.

The creation and destruction of property rights.

The ownership of domain names is just one example of a new form of an old, satisfactorily, if not perfectly settled issue. A broader question is how to retain ownership of digital content once it has been digitized and made available on the Internet. The widespread availability of inexpensive copying machines a decade ago created a culture of book and article copying to the great distress of conventional publishers. Law suits and clarifications of the copyright law resulted in a "fair use" doctrine which limits copying to personal use. "Fair use" on the Internet is much more difficult, if not impossible, to define. For one class of content creators, the issue is irrelevant: those for whom dissemination is more important than immediate financial gain. Scientists, scholars in the humanities and creative writers are increasingly bypassing paper-based media and are skipping directly to Internet publication. The effect on the lucrative business of scholarly publishing will be devastating as they watch their feedstock evaporate.

 

 

Trade in services is an increasingly large portion of world trade.

The Internet promises to expand this invisible trade exponentially and uncontrollably from the standpoint of sovereign authorities. Insurance is not the only thing that can be moved beyond existing regulatory measures. Relying upon their semi-sovereign status as well as the global nature of the Internet, the Coeur d'Alene tribe of native Americans in Idaho have established an international lottery on the Internet doubly beyond the control of the U.S. and Idaho State governments. The telecommunications services which have constituted a growing share of world trade in invisibles have been well-regulated affair both in governmental and commercial terms. Traffic is measured in minutes by the sending and recipient countries and companies and compensation is paid under international agreements much as banks settle funds flows. Internet telephony upsets these arrangements by bypassing the telephone companies almost entirely. Once the quality of service deficiencies are addressed and the last mile problem is solved, a very large piece of international trade will disappear from the scope.

 

The authenticity of communications becomes suspect on the Internet.

Considerable effort is being devoted to security and encryption due to the anonymity of the Internet and the indeterminacy of the packet technology. Law enforcement and national security interests have butted up against the anxiety engendered by the lack of clear knowledge of where the Internet address is located and who is there. Authenticity anxiety is most powerfully felt when money is exchanged, but is also present in other types of communication as mundane as scholarly texts; is the paper on the Web really authored by Dr. Mathiason?

 

Privacy of communication is a reasonable assumption in circuit switched networks.

Indeed, the almost total digitization of the telephone network and its reliance on extremely high speed multiplexing techniques drove the U.S. government to successfully press for the adoption of the Communications Assistance to Law Enforcement Act (CALEA) which obliges telephone companies and their suppliers to modify their equipment to support digital wiretaps. Privacy is not a reasonable assumption on the Internet.

5. The problem of preserving national, regional and local culture is exacerbated by the Internet. Before the Internet achieved its current prominence, the dominance of U.S. mass media products in the world market was a major bargaining issue during the Uruguay round of trade negotiations with France and Canada holding out for significant restrictions. Substantively unrelated agricultural negotiations led to compromises which apparently satisfied the negotiators. The Internet players are not so easily identified and mollified (or restricted) as the Disney Corporation and Rupert Murdoch. The relatively low cost of entry and exit means that backyard moguls can become significant originators of cultural content available everywhere. A clash with local mores is inevitable in open societies and even more so in closed ones. The dominance of the English language on the Web is a thorn to cultural preservationists outside the English-speaking countries (and even inside, vide Quebec). Efforts are underway to make the Web multilingual but the most common ways of representing text digitally were designed for the Roman alphabet, especially as used in English.

The historical working commercial and international law has not been brought to bear on these issues or is inherently incapable.

 

Order out of potential chaos

The scientists and technologists who created the internet used informal means to set up governance institutions. As long as the Internet was small and its issues of a technical rather than a policy nature, this system worked well. Technical specifications were worked out within the Internet Engineering Task Force, using a principle of "rough consensus" under which, if there were no major strong objections, standards could be agreed.

Domain names were assigned by another body, acting on a form of delegation from the United States Federal Government, the Internet Assigned Names Authority. In practice, this was run by one individual, Jon Postel, of the University of Southern California.

The overall management structure had a remarkably "clubby" tinge. Individuals holding positions in various computer-related institutions would become involved in the Internet, would establish links with other individuals, would meet at meetings and, generally, be able to solve problems informally.

The increasing rate of growth of the Internet led the National Science Foundation to divest itself of the responsibility for assigning the generic top-level domain names, .COM, .ORG, .NET, .GOV and .EDU.

The business of assignment

Assignment of domain names is made by registrars who can provide the names that are linked to the numerical addresses in the major root servers. As a result of the NSF contract, a company located in northern Virginia, Network Solutions, Inc. (NSI), operating as InterNIC, was given the responsibility in 1992 for registering domain names using the top-level names. The contract extended to March 31, 1998.

The rate of growth of domain name registration became nearly exponential. The growth from January 1, 1994 to June 30, 1996, when Network Solutions stopped providing information to the Internet Monthly report, are shown in Figure 1. These total some 500,000 registrations. Network Solutions states in their web site that during the period of their contract they registered over 1.5 million domain names, of which 1 million would have been registered from July 1, 1996 to February 1998 when NSI stopped accepting new registrations.

Source: Calculated by the authors from various issues of the Monthly Internet Report

The phenomenal rate of growth of the Internet soon had several consequences for domain registration. First, Network Solutions began to charge for the registration service, based on the argument that their costs had increased beyond those covered by the NSF contract. Second, the economic benefits of being a domain name registrar became clear. At $100 per registration, the 1.5 million domain names registered by NSI would have yielded revenue in the amount of over $150 million. Third, the policy followed by NSI of "first come, first served" in domain names began increasingly to lead to conflicts over trademarks, as domains began to be registered that conflicted with registered trademarks. Fourth, the volume of registrations frequently overwhelmed NSIís capacity and produced unhappiness among persons seeking domain names. Finally, an error in updating NSIís root server on July 16, 1997 essentially crippled the Internet.

The Internet community became concerned that an essential element of Internet management was being controlled by a private monopoly. This was particularly a concern in Europe who sensed that the generic top-level domain names were becoming United States property.

 

The spark that ignited the fire: THE GENERIC TOP LEVEL DOMAIN MEMORANDUM OF UNDERSTANDING

The growth of the Internet might have proceeded by a natural evolutionary course, with increasing signs of conflict, had there not been a decision by some of the Internet founders to try to put some order into the matter of assigning domain names.

They established the International Ad-Hoc Committee (IAHC) whose charter states, inter alia, that

Proper operation of TLDs is essential for the smooth running of the Internet. This includes both administration of domain name assignments, as well as the real-time behavior of the distributed lookup service which achieves DNS mappings for client software. Further, the topic of iTLD has become controversial and includes potentially large financial implications. For its specification effort, the IAHC will operate in the style of an Internet standards "design team", formulating criteria and procedures but seeking review, modification and consensus from the rest of the Internet community. Internet standards are developed according to the principal of "rough consensus" which means a strongly dominant sense of preference within the community that is seeking to achieve forward progress, in spite of differing opinions.

The DNS is an international resource and the IAHC will at all times operate with that perspective. The IAHC specification effort will address legal, administrative, technical and operational concerns, with particular attention to the questions of fairness and functional stability. The IAHC will attempt to define procedures which are as simple, fair and direct as possible, resolving the minimum required issues. In order to provide timely results, the IAHC will focus initially on the issues of highest priority.

The IAHC was composed of persons named by the Internet Society (ISOC), the Internet Assigned Numbers Authority (IANA), the Internet Architecture Board (IAB) , the Federal Networking Council (FNC) , the International Telecommunication Union (ITU), the International Trademark Association (INTA) and the World Intellectual Property Organization (WIPO). Like the Internet of the time (two years ago), the IAHC was an odd mixture of non-governmental organizations, quasi-governmental bodies, business association and two organizations of the United Nations system. No governments were represented on the IAHC.

Using the time-honored method of decision-making on Internet technical matters, the IAHC prepared a report on the administration of domain names. This meant that the various participants circulated drafts within their networks and then came together in a meeting in December 1996 and agreed on a draft. The participants included the following:

Sally M. Abel, a partner in the law firm of Fenwick and West and chair of the Internet Subcommittee of the International Trademark Association (INTA).

Dave Crocker, a director of the Internet Mail Consortium and a principal with Brandenburg Consulting.

Donald M. Heath, president and CEO of the Internet Society and chair of IAHC.

Geoff Huston, technical manager of Australia's Telstra Internet.

David W. Maher, a partner at Sonnenschein Nath & Rosenthal, and a

registered patent attorney.

Perry E. Metzger, president of Piermont Information Systems Inc.

Jun Murai, an associate professor on the Faculty of Environmental Information at Keio University.

Hank Nussbacher, an independent networking consultant, currently working with IBM Israel.

Robert Shaw, advisor on Global Information Infrastructure (GII) issues at the International Telecommunication Union (ITU).

George Strawn, US National Science Foundation (NSF) and chair of the Federal Networking Council.

Albert Tramposch, senior legal counsellor at the WorldIntellectual Property Organization (WIPO) in Geneva.

After circulating the draft, a final report was adopted on February 4, 1997. This was followed on February 28, 1997 with a document on the Establishment of a Memorandum of Understanding on the Generic Top Level Domain Name Space of the Internet Domain Name System (gTLD-MOU).

In the world of international telecommunications, memoranda of understanding had been used as vehicles to codify agreement without the need for a binding international treaty. They reflect the fact that telecommunications standards were highly susceptible to technological change and that the entities responsible for implementing standards vary from country to country and often are not governments.

The gLTD-MOU differed from many of the other memoranda of understanding in that, in its preamble, it stated that it was a document in the name of "The Internet Community (1997)". It established a model for governance based on a self-regulating market. The assumptions were clearly set out in the preamble to the MOU:

[The Internet Community] is of the view,

The Memorandum of Understanding then recognized the role of the ITU by stating

that pursuant to the basic provisions of the Constitution of the International Telecommunication Union (ITU), the roles and functions of the ITU include:

Finally, the MOU gave to ITU the responsibility of acting as depository for the agreement. The ITU duly organized a meeting entitled "Internet Domain Names: Information Session and Meeting of Signatories and Potential Signatories of the Generic Top Level Domain Memorandum of Understanding (gTLD-MoU)" in Geneva from April 29-May 1, 1997.

At the meeting, some 215 signatures were obtained. They were well-distributed internationally and included private companies, non-governmental organizations and government-owned telecommunications companies. (See Table 1) They did not include governments. And they were not heavily weighted in favor of companies or organizations from the United States.

Table 1. Geographical distribution of original signers of the gTLD-MOU

Region

Number

Percent

Asia

41

19.1%

Eastern Europe

6

2.8%

Western Europe

84

39.1%

Africa

4

1.9%

Latin America and Caribbean

8

3.7%

Canada

9

4.2%

USA

63

29.3%

TOTAL

215

100.0%

Source: Calculated by the authors from ITU, List of Signatories of the Generic Top Level Domain Memorandum of Understanding (gTLD-MoU), 1997 (http://www3.itu.int/net-itu/gtld-mou/simple.htm)

On May 1, 1997, there was a ceremony on the signing of the MOU, with some 80 of the participants doing so. However, neither the United States nor the European Union signed on. As the AP report of the session put it,

The U.S. government said it was still consulting with its own agencies and with American corporations and had yet to devise a position on the name issue.

In general, however, the U.S. government, which started the Internet for research and military purposes, has taken a sponsoring role in keeping it going, but has favored letting it become self-administering.

Both the United States and the European Union sent their official representatives the two days of meetings leading up to the signing and complained that the agreementówhile perhaps eventually acceptableówas premature.

The United States, under considerable pressure from opponents to the MOU, decided to study the matter. In June they announced a public commentary, under the sponsorship of the Department of Commerce (see below). In October, the U.S. House of Representatives held hearings on the issue of domain names. In December, Ira Magaziner, the Presidentís adviser on the Internet held consultations. In January, the Green Paper was issued.

The Green Paper accepted the argument that the Internet should be self-governing and proposed to remove the U.S. Government from any role. However, in specific terms, it merely proposed to replace the Intenet Assigned Names Authority (in essence, Jon Postel) with a new U.S.-based not-for-profit corporation. It did not address the concern of Internet users and providers from outside the United States, who had been the main advocates of the gTLD-MOU.

It did exclude the ITU and WIPO from any role in the new corporation, by specifying that

The board of directors for the new corporation should be balanced to equitably represent the interests of IP number registries, domain name registries, domain name registrars, the technical community, and Internet users (commercial, not-for-profit, and individuals). Officials of governments or intergovernmental organizations should not serve on the board of the new corporation.

The only international dimension was a proposal to include representatives of the regional domain name registries on the board of directors. The paper proposed

three directors from a membership association of regional number registries, representing three different regions of the world. Today this would mean one each from ARIN, APNIC and RIPE. As additional regional number registries are added, board members could be designated on a rotating basis or elected by a membership organization made up of regional registries. ARIN, RIPE and APNIC are open membership organizations that represent entities with large blocks of numbers. They have the greatest stake in and knowledge of the number address system. They are also representative internationally.

The Magaziner proposals were issued with a Request for Comments by the Department of Commerce, with a deadline of March 23, 1998. A preliminary examination of the initial comments suggests even more diffuse comments than in the July-August 1997 round. Most, however, were hostile to the Magaziner approach, especially from commentators from Europe. One comment, for example, states

One other issue that has been almost overlooked, the Internet has very much become a global entity. Requiring the new organization to be housed in the US, dealing with it from a US perspective and handling it from a US perspective makes this document seem very much US-centric. If anything, this proposed organization should be housed in a neutral territory, such as a United Nations building. In fact, redundant organizations could be set up under various UN buildings in various countries to prevent a single point of failure in this system.

Another commentator, from Poland, noted

Summarizing: the "Green Paper" is not a bad thing. It is surely an important opinion in the ongoing discussion on the future of Internet domains. It's a piece of good work. But the U.S. government should stop on that. Keep it being a proposal only and do not take any actions outlined in it (except of stopping the government funding, of course). Let the Internet community decide. If this is going to be a self-governance, it can't be done on the rules set by the U.S. government.

With regards Jaroslaw Rafa - an Internet user from Poland raj@inf.wsp.krakow.pl

Yet another commentator from Europe wrote:

From: Matthias Tschakert <matt@zedat.fu-berlin.de>

To: NTIADC40.SMTP40("dns@ntia.doc.gov.")

Date: 2/11/98 3:27pm

Subject: get out of the way!

Dear Ladies and Gentlemen,

since you issued a request for comments:

Let CORE rule and get out of the way!

These guys handled it well the last years, we can trust them.

It's outrageous what a mess you are doing here.

M. Tschakert

Free University of Berlin

A more reasoned comment from the European Telecommunication Standards Institute makes the same point:

The Internet is increasingly perceived as an international community. Statements like "the Internet does not belong to a country, but to the whole world" are gaining validity through participation and usage. The Green Paper clearly states the need for a solution consistent with the international vocation and scope of the Internet, and for a process that should include the "larger voice in Internet coordination" claimed by entities outside the US. In contrast the practical proposals make reference to US laws and require the new IANA to be incorporated in the US, indicating disregard for overseas partners. No mention is made for any requirement of presence at the international level for Registrars or Registries, nor to the possible geographical distribution. The process that led to the creation of the gTLD-MoU was international, and further discussion in the gTLD-MoU forum is world-wide. Moreover, CORE is really international in scope. The CORE seat is in Europe, the Chairman comes from the US, the Vice-Chairman from Australia. Its Members reside in all five continents (37%US, 45% Europe, 14% Asia Pacific, 5% Rest of the World), bringing the Registrars closer to the end users, but granting at the same time global coordination and common business practice and ethics world-wide.

In effect, the issue of who will give the domain names remains unresolved.

The contending approaches

In approaching the issue of order, there are a number of contending approaches, ranging from an almost Adam Smithian "invisible hand" through public sector regulatory agencies along the line of public service commissions in the United States.

A self-regulating market

One version of this approach is Peter Huber's Law and Disorder in Cyberspace (NY: Oxford, 1997) where he argues that the advance of technology is so rapid that no regulatory regime has had and can have any effect which is not detrimental. The maintenance of order in the "telecosm" (Huber's neologism) should be maintained by "private actors and private litigants, common law courts and the market" Against Huber, Stewart Baker has argued that judges are clumsy and retrograde makers of social policy. More to the point, in the international arena, the Anglo-Saxon common law tradition is non-existent and "the market" is a synonym for the global behemoths of Canada, the United States, the European Union and Japan.

Faced with this problem, some advocates argue for a purely private regulation, as exemplified by an essay by Milton Mueller, which states:

We need to define rules and procedures that will permit and encourage competition among administrators of TLDs in response to market demand. Freedom of expression should be a primary concern. Proposals for compulsory national TLDs should be rejected. National TLDs would undermine the international character of the Internet and encourage national governments to enact myriad petty regulations and restrictions on free speech. Domain names should not be equated with trademarks or brand names. We should reject attempts to forge inappropriate links between domain name registration and trademark protection.

The U.S. government should encourage the development of property rights and competition by moving the administration of Internet domain names into the private sector.

A market guided by national authorities

Just as the Federal Communications Commission has regulated the cable TV, telephone and broadcast industries for almost 100 years, so also could it and its foreign counterparts regulate the Internet. Two obstacles are likely to obviate this option, which finds little favor among those concerned with Internet regulation.

First, the technology is mutating so quickly that even the FCC cannot keep up with the demands for new regulations in its traditional sphere. Second, the Internet lacks the choke points of easily identifiable parties to regulate. A comparison of the efficacy of customs collection from large ocean vessels with that from Caribbean drug runners in small fast boats which can land anywhere points up the difficulty of dealing with widely dispersed mobile targets.

 

An international regime

The basis for an international umbrella to set policy and resolve disputes has been laid with the World Trade Organization which is responsible for administering trade agreements such as the General Agreement on Trade and Tariffs (GATT), the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Intellectual Property Rights (TRIPS). The emerging services of the Internet and the dilemmas they pose have not yet been addressed by the WTO, but the model has been established.

An analysis of perspectives: the DOC Comments

When the United States federal government became aware that it would need to have a policy on the domain name question, one of its first reactions was to request comments using a formal procedure. Accordingly, on July 1, 1997 the Department of Commerce issued a Request for Comments on the Registration and Administration of Internet Domain Names through a formal publication in the Federal Register (Docket No. 970613137-7137-01). The comment period began on July 1 and ended on August 18, 1997. The responses were published on the Internet at the website of the National Telecommunications and Information Administration, which was the federal authority responsible for collecting and analyzing the results.

The request elicited a large number of comments, which covered the spectrum of persons and institutions concerned with the Internet. These included the major associations of the original Internet denizens like the Internet Society, the new entrepreneurs, the corporations maintaining the pipes like MCI and ATT, main computer manufacturers like IBM, trademark lawyers, business associations as well as many individuals. These comments can be taken as a sample of opinions about the key issues of the domain name controversy as well as about Internet governance generally.

The Department of Commerce reported a total of 432 comments. However, of these, 113 were identical comments favoring a particular new proprietary domain names system being proposed by a company called pgMedia. Others were duplicates, or did not contain information or were not reported on-line. After subtracting these, there were a total of 282 substantive comments that could be analyzed.

The comments came primarily from individuals (see Table 2)

Table 2. Types of respondents to the Request for Comments

Type of Respondent

Total

Percentage

Business association

14

5.0%

Government

2

0.7%

Individual

149

52.8%

International organization

2

0.8%

ISP

13

4.6%

Large corporation

12

4.3%

NGO

11

3.9%

Small business

42

14.9%

Web management

37

13.1%

Grand Total

282

100.0%

As would be expected for a national request for comments, of the respondents, almost all were from the United States (93 percent), with most of the remaining (5.6 percent) from Canada, the United Kingdom or Australia.

The comments ranged from short messages on a specific topic to detailed responses following the structure of the request for comments. Many of the individuals who replied were known specialists on the internet or persons who had been concerned with the domain name controversy. To separate the "eminent" comments from those of what might be termed the Internet "hoi polloi", a list produced by Anthony Rutkowski, of the World Internet Alliance, was used. Rutkowski, one of the original Internet founders and an active participant in the domain name and internet governance debate presented a selection of comments in the World Internet Alliance web page. These comments included a more balanced selection of types of respondents (Table 3). Business association included such groups as the American Bar Association, the Canadian Association of Internet Providers, the Coalition of Advertising Supported Information and Entertainment (CASIE), the Commercial Internet Exchange and the International Trademark Association. ISPís included companies such as CommerceNet, the Internet Computer Bureau and PSINet. Large corporations included such as IBM, MCI Communications, British Telecom, Bell Atlantic. Non-governmental organizations included, among others, the Asia and Pacific Internet Association (APIA), the Electronic Frontier Foundation and the Internet Society. Individuals included such Internet leaders as Jon Postel, the IANA Administrator; David Maher, the iPOC chair; Carl Oppedahl and Einar Stefferud.

Table 3. Types of commentators

Noted in Rutkowski's list

Type of Respondent

Yes

No

Grand Total

Business association

11

3

14

Government

1

1

2

Individual

24

125

149

International organization

1

1

2

ISP

7

6

13

Large corporation

12

0

12

NGO

10

1

11

Small business

5

37

42

Web management

6

31

37

Grand Total

78

204

282

 

Responses viz a viz international governance

In order to see whether the commenters were concerned with the international nature of the Internet, comments were coded in terms of whether this was mentioned anywhere in the response. Somewhat more than a third of the comments mentioned the international nature of the Internet, the remainder did not. However, there was a significant difference between the "eminent" commenters and the rest. Of the eminents, 74 percent were internationally-oriented, compared with only 23 percent of the "hoi polloi".

 

Table 4. "Eminent" Commenters who mentioned international nature of the Internet, by type

Type of Respondent

Percent

Number

Business association

91%

11

Government

0%

1

Individual

67%

24

International organization

50%

2

ISP

57%

7

Large corporation

92%

12

NGO

90%

10

Small business

60%

5

Web management

67%

6

Grand Total

74%

78

It is clear that the greatest sense of the international Internet is held by those with the greatest stake in it: the large corporations, the business association and the non-governmental organizations of internet users.

A second issue had to do with whether the response indicated that the Internet should, to the extent possible, be self-governing. Less than a third of the comments mentioned this aspect of the Internet, although the request for comments clearly implied this alternative. However, over half of the "eminents" favored self-government for the Internet.

Table 5. Percent of comments mentioning self-government for the Internet

Yes

No

Eminents (n=78)

54%

46%

100%

Hoi polloi (n=204)

17%

83%

100%

Total (n=284)

27%

73%

100%

 

 

Table 6. Mentions by "Eminents" of Internet self-government, by type of respondent

Mentions Internet self-government

Type of Respondent

Percent

Number

Grand Total

NGO

90%

9

10

Business association

82%

9

11

Small business

60%

3

5

International organization

50%

1

2

Large corporation

50%

6

13

ISP

43%

3

7

Individual

38%

9

24

Web manager

33%

2

6

Total

54%

42

78

As can be seen from Table 6, the comments from the various not-for-profit associations, as well as the business associations are particularly committed to the idea of a self-regulated Internet.

Finally, the comments were examined to see whether there was any mention of one or more of the existing international organizations (ITU, WIPO, WTO or the United Nations). Overall, only 14 percent of the comment mentioned an international organization. However, almost none of the "hoi polloi" did so. Almost half of the "eminents" mentioned international organizations. As can be seen from Table 7, non-governmental organizations were particularly prone to do so.

Table 7. Comments of "eminents" mentioning specific international organizations

Type of Respondent

Mentioned International Organization

Number

Percent

Total

Business association

5

45%

11

Government

0

0%

1

Individual

7

29%

24

International organization

1

50%

2

ISP

3

43%

7

Large corporation

5

42%

12

NGO

7

70%

10

Small business

1

20%

5

Web Management

3

50%

6

Total

32

41%

78

 

The main thrust of each comment in terms of the issues with which the domain name controversy was concerned was also coded. For example, if the bulk of the comment was devoted to complaints about the registry service provided by Network Services, Incorporated, this would be coded. Similarly, if the thrust of the comment was to favor the proposals made in the Memorandum of Understanding on generic Top-Level Domain Names, this was coded. Table 8 shows the result for both Eminents and the Hoi Polloi.

Table 8. Main issue commented upon, by type of respondent

Comment

Eminent(N=78)

Hoi Polloi (N=204)

Total Percent

Grand Total

Technical

6%

22%

18%

51

Against Network Solutions

1%

16%

12%

34

Trademark

17%

9%

11%

32

Favors gTLD-MOU

23%

4%

10%

27

Against government regulation

5%

10%

9%

24

Favors status quo

3%

11%

9%

25

Favors international regulation

15%

4%

8%

22

Favors national government regulation

8%

5%

7%

20

Other

8%

7%

7%

19

Favors management by a not-for profit organization

4%

4%

4%

12

Against international regulation

3%

3%

3%

9

Favors framework convention

3%

1%

1%

4

Against the gTLD-MOU

3%

0%

1%

3

Grand Total

100%

100%

282

For the mass of commenters, the issues in domain names were technical in nature. These were comments about possible structures of the domain names, including new schemes (the 113 repeated comments proposing a new structure were coded as a single comment). About half of the "technical" comments concerned the desirability of having a domain name for adult sites to facilitate filtering of these sites for children. Many of the "hoi polloi" sent comments complaining about their treatment by Network Solutions, often in some detail.

The pattern among the "eminents" is different. The largest category consisted of comments generally supporting the proposals agreed under the Memorandum of Understanding. This, however, reflects the fact that they were comments produced, generally speaking, by parties to the MOU.

On the matter of whether the Internet needs regulation of some kind, the division is clear. Some 46 percent of the eminents clearly favored some form. If those concerned with trademarks, which is, by definition, a regulatory matter, are added, the total reaches 63 percent. Some of this group, however, favors national rather than international regulation.

In contrast, some 11 percent of the eminents are consciously opposed to any public regulation of the Internet.

A few of the responses argued for an "Internet Constitution" which would set out rights and responsibilities for the Internet.

 

The roles of the players

The domain name controversy has begun to set out more clearly the different players who are involved with Internet governance. They each have different perspectives on what governance involves, and whether there should be it should be international.

The netizens

The first class of players is the group known as the "netizens". These are the legates of the original users of the Internet, the computer scientists and researchers who developed it. Some three generations can be identified.

The earliest generation consists of pioneers like Jon Postel, Vint Cerf, Don Heath and Tony Rutkowski. They consistently believe that the Internet should be regulated by the users, using the kinds of consensus techniques that formed the basis of decision-making in the early days. Their mantra is participation. They are organized through the various institutions that evolved during the early days of the Net: the Internet Society, the IETF and such think tanks as the Electronic Frontier Foundation. The EFF comment in the RFC of the Department of Commerce sets out the position clearly:

1. The Internet top level domain name space, an essential component of the operational infrastructure of the Internet, is a global public resource and must be developed and maintained for the public good.

2. Any administration, use and/or evolution of the Internet top level domain name space is a public policy issue and must be carried out in the interests and service of the public, and with the broadest international public input and participation.

There is a difference that can be observed among these first generation Netizens between those from the United States and elsewhere. The associations from Asia and from Europe have been much more convinced of the need for regulation, and have tended to see it in a larger context. For example, the Asia and Pacific Internet Association (APIA) notes the many linkages among issues, in its RFC comment:

Nevertheless, the governments of the world will need to give their "blessing" to these structures and frameworks, to ensure stability and legitimacy. Business interest demands that legitimate and stable frameworks are needed to minimize business and legal risks.

POINT 3. Internet governance should not just focus on domain names

More importantly, the new structure should not just be created to focus on domain names. It should also look at IP addresses, standards processes, financing of the Internet bandwidth costs globally, etc. Basically guidelines and policies that will help advance the vision of a Global Information Infrastructure (GII) and the various National Information Infrastructures (NII). The underlying principle to all these efforts should be interoperability and interconnectivy.

The Domain Name controversy divided the original netizens. While most moved in the direction of the IAHC proposal for a quasi-public self-regulatory mechanism, some moved in the direction of no regulation at all. A leader in this effort has been Anthony Rutkowski, former executive director of the Internet Society and a former senior adviser to the ITU, whose disillusionment with that institution is profound. He rejects the idea that the Internet is a public resource in the classical sense and therefore needs regulation. This is reflected in his comment in response to the Department of Commerce RFC:

Some parties in the ongoing discourse on domain names - especially some intergovernmental organizations - have sought to characterize domain names as a radio spectrum like "limited global public resource" for purposes of assuming jurisdiction and effecting traditional international managed cartel governance models. The issue is whether domain names are treated a "public resource" to be administered by an ITU-type bureaucracy or conversely as globally unique, registered private name expressions managed by private entities. Denominating domain names as a global public resource seems at best a perversion that is orthoginal to reality, and a poor public policy making choice that has significant permanent administrative implications. Thus, an additional principle should be adopted that asserts "domain names are globally unique private expressions that describe an open network based information object."

Another position, by an Internet pioneer, Einer Stefferud, finds the number of linkages so broad and complex that no real Internet-based solution can address them:

63. The Internet is entirely International in scope and reach, in keeping with the primary concept of all gTLD names. Therefore, resolution of this problem (trademarks) for the Internet requires that it also be solved for all other related International activities. I do not see any way to solve this problem for the Internet alone, without also solving it for all other international economic, commercial, governmental or social situations. Therefore, in my view, it is wrong to impose an "Internet-Only" regime to cope with the very messy and unresolved international registered trademark situation. Indeed, an Internet-only regime would likely make things much worse, in general.

While the pioneer generation has been debating the profundities of Internet governance, a second generation has begun to emerge, of Internet users who came on board during the expansion phase. Many of these consider themselves libertarians, opposed to any regulation whatsoever of the Internet. Others express a concern about the kinds of information that transit the Net, especially adult-oriented material. This generation at present lacks organizations and institutions to express their diverse views, other than individual e-mails, chat groups and on-line forums. How to incorporate these views will be a challenge.

 

The corporations

The growth of the economic dimension of the Internet has involved large corporations in the governance issue. The dispute within the United States between Microsoft and other corporations regarding the integration of Internet browser software into operating systems is only one of many issues of governance and competition.

On the whole, the corporate world favors regulation of the Internet, albeit with a view to protecting competition and corporate interests. The issue turns on whether this regulation should be national or international.

The clearest position on national regulation is expressed by Network Solutions, Inc., the domain name registrar whose monopoly as a government contractor provoked the crisis in the first place. In its comment to the Department of Commerce Request for Comments, NSI states a clear case for narrow national regulation, based on the premise that the Internet is not a public good:

Government must play the stabilizing role now, providing a legal anchor for critical elements of the Internet through a period of transition to a more mature form of governance. The "rough consensus" decision mechanism that served the Internet well in the past is inadequate to deal with the complexity and conflict that commerce has brought. Internet stakeholders with differing interests need a better mechanism with legal force to resolve their conflicts.

Whatever the governance mechanism adopted, NSI believes that the marketplace and commercial interests should ultimately drive domain name registration. NSIís experience has shown that the domain registration services business is investment intensive. Structuring registration services as a competitive for-profit industry is the only way to justify the needed investment. In this approach, customer demand creates the built-in incentive to generate improvements in service, the development of additional services and the most creative solutions to evolving problems.

NSI believes that domain name registration is not a "public trust." The notion that domain names should be managed as a public trust is based on the misconception that second-level domain names are a limited commodity. This claim is unfounded; the number of second-level domain names (or domain names at any level) is virtually limitless, and the parallels made to radio spectrum are incorrect. The spectrum comparison is correctly drawn to the 32-bit IP numerical addresses on the Internet. They are very limited and are in increasingly short supply.

 

The Pipe Providers

The major companies who provide the pipes over which connections among networks flow constitute a major corporate community. They are, on the whole, favorable to international regulation in the sense that international telecommunications companies have always been favorable: international organizations should provide the locus for agreeing on standards for connectivity and payment arrangements. They have been comfortable with the ITU role and most signed on to the gTLD-MOU.

The European Telcos

Like the pipe providers, the European telecommunications companies, which are now in a stage of deregulation and devolution, have been comfortable with international regulation through the ITU. Their position, like that of the pipe providers, is well expressed in the comment of British Telecom to the Department of Commerce RFC:C

BT particularly supports the involvement of the ITU and WIPO as absolutely appropriate given the nature of the subject matter and the issues concerned. Through their membership of these international bodies, national governments can provide appropriate input and direction to the initiative to manage gTLDs and allow the internet to develop as a genuinely global resource with no individual Government exerting a proprietary claim to the whole. Although some commentators have criticized the ITU and WIPO actions, BT believes such criticisms are misguided and that the ITU and WIPO bring absolutely invaluable experience at the international level in dealing with the communications and intellectual property issues which affect the DNS. The active participation of these bodies brings the benefit of real-world expertise and credibility to the DNS administration. The informal procedures which were effective in the initial development of the internet are no longer appropriate given the scale of the network growth. More formal organization and processes are required in which WIPO and ITU are well qualified.

The ISPís

A new class of corporations is the Internet Service Providers, the entities that provide network connections. While some are large, like America On-line, most are small. Their approach to regulation is somewhere between the easy-going self-regulation proposed by the first-generation netizens and the standard regulation favored by the European Telcos and the pipe providers. In some of the comments, there is found a naive view of some parliamentary method of Internet governance decision-making. This is reflected in the comment of the Internet Service Providers Consortium (ISP/C):

Misunderstanding of this term "consensus" is responsible for much of the political crisis surrounding domain names. Consensus is absolutely necessary in the sense that every network that wishes to interconnect with the other networks that constitute the Internet must accept the decisions of a single root administration. Consensus is impossible in the sense that it defies human nature to expect all of the diverse users of the Internet to agree on what the appropriate policies of the root administrator should be. Differences of opinion will always exist, and, in order to win the consent of all parties, these differences must be resolved in favor of the will of the majority, determined by an actual vote taken by an authorized and fair method.

The mechanism for root administration must be a self-governing one for the simple reason that there is no official government entity on the planet that has jurisdiction over the Internet as a whole. Governments are, of course, users of the Internet, however, and therefore an important part of the necessary self-governing.

 

The new entrepreneurs

The growth of the Internet has brought a new sub-group of corporate actors into the picture. These can range from the companies hoping to cash in on an opening up of the domain registration system as new registrars through small- and medium-size businesses hoping to use the Internet to expand their markets. Like the large corporations, they have a sense that regulation is probably necessary, but are less comfortable with the normal international mechanisms.

A clear statement of the views of the emerging consumer sector is found in the comment submitted by the Coalition for Advertising Supported Information and Entertainment (CASIE), a joint effort of the U.S. based Association of National Advertisers (ANA) and the American Association of Advertising Agencies (AAAA):

CASIE agrees that the private sector, with appropriate input from governments throughout the world, is the best structural alternative. The Internet has become a global phenomenon, beyond the exclusive regulatory control of any one government. While the U.S. government certainly has the greatest claim to the Internet, it should adopt an open, leadership role in fostering private sector control of the network.

...

(ii) An increased role of national or international governmental organizations in national and international domain name registration systems should be avoided. The Internet has largely been a self-regulated system for most of its existence. To now impose significant government oversight would be disruptive. There is also no apparent reason that it is necessary. There is a role, however, for certain quasi-governmental organizations like the U.N. bodies or other such global organizations. Such organizations, however, should play more of a supportive role than a governance responsibility. Governance should be placed with non- governmental trade associations, businesses, and organizations that are the primary users of the Internet.

The national governments

For governments, the Internet provides a dilemma. Effective national regulation is clearly impossible from a technical standpoint, most of the constituency groups oppose vigorous national regulation and an open, competitive, market-based world trade system is the dominant ideology. At the same time, governments are under pressure to avoid monopolies, control what is considered by many to be objectionable content and maintain a level playing field.

The domain name controversy has laid out these dilemmas in clear terms. One difficulty for national regulators is that there is no natural meeting place to exercise national interest. The issues are diffuse and are dealt with by a large number of entities, both national and international. This lack of location to reach agreements has affected the national positions of many governments.

The United States

As the original funder of the Internet, the United States government has had an involvement with its governance since the beginning, although it traditionally worked through the informal decision-making structures of the IETF and the Federal Network Council. There has been a recognition of the increased economic importance of the Internet that it embodied in the Governmentís paper on a Framework for Electronic Commerce. This paper enunciated five principles relating to regulation:

These principles of non-interference quickly ran into the difficulty that for some areas of the Internet, like encryption or control of pornography, there were strong pressures for national regulation. Moreover, the government policy lacked a specific underlying management model. Thus, when the IAHC proposal was tabled, it was partly consistent with the enunciated principles, but faced opposition. The response of the government was to temporize, as reflected in the Magaziner Green Paper, in such a way that the ultimate decision is not yet clear.

The European Union

For the European Union, the problem has been different. The excessively-regulated state-owned telecommunications companies with their inherent lack of competition had meant that telecommunications costs were high in Europe. Moreover, the structure did not allow European countries to benefit fully from the new technologies.

The decision to de-regulate telecommunications has opened up the prospect of a more vigorous, competitive Europe. This approach is stated in the paper sent by the European Commission on electronic commerce which, in its executive summary, states:

The aim of this European Initiative is to encourage the vigorous growth of electronic commerce in Europe. A fast-moving sector, electronic commerce will have a considerable impact on Europeís competitiveness in global markets. Building upon the Commissionís work to date, it provides a coherent policy framework for future Community action, and aims at establishing a common European position to achieve global consensus through international negotiations.

 

The international organizations

Like national governments, international organizations have had difficulties in coming to terms with Internet regulation. While, for domain names, the ITU and WIPO, as well as, to an extent, WTO have been involved, the intersection of the domain names issue with other Internet issues has produced an involvement of other international organizations. The international organizations involved to date include ITU, WIPO, WTO, the Office of the High Commissioner for Human Rights, the United Nations Commission on International Trade Law, the OECD and ASEAN, to name a few. However, no central United Nations body (like the Economic and Social Council) has yet addressed the issue of the Internet.

ITU

As the international organization concerned with standards of telecommunications, the ITU has taken an aggressive role in the Internet recently. While, in the early years of the decade, it seemed to be a latecomer, it has since tried to stake out its position. This has been articulated by the current ITU Director-General, Pekka Tarjanne:

... For those entrusted by the international community with responsibility for managing international relations in a time of rapid change, two facts stand out.

On the one hand, we are clearly living in a period of historical discontinuity in which the structures of the past seem to have lost their power to determine the future. Given many of the events we have witnessed in recent years, it is surely not unreasonable to think that political power is likely to drain away from the nation states that were created in the past couple of centuries and flow towards super- and sub-national entities.

On the other hand, it is also clear that for the time being effective political power remains the property of the nation state. The structure of international laws and institutions which has been developed to govern the common affairs of mankind still rests on this base. With only limited exceptions, no sovereignty has been ceded to super-national political organizations. International relations are still the way the affairs of the world are managed, whether through bilateral relations between the more than 200 independent countries and territories now found in the world, or through multilateral relations between the 180 plus members of the United Nations and the many other intergovernmental organizations that have been put in place.

The international telecommunications community is particularly sensitive to the fact that we are living "between past and future". In part, this is because telecommunications is in the vanguard of many of the most important structural changes that are taking place in contemporary society. In part, it is because the development of telecommunications has historically depended on the reconciliation of competing interests -- between the public and private sectors, and between nations -- in the light of criteria that explicitly or implicitly derive from "global" or universal values.

...

For the past 132 years, the International Telecommunication Union has been the central forum in which the international telecommunications community has sought to reach beyond purely national interests toward global values.

The ITU, based on this premise, agreed to act as registrar for the gTLD-MOU. It gives a high priority to the extension of universal information and communications services in the context of development, as well as working in its own areas related to trade in information services.

WIPO

As the specialized agency of the United Nations system concerned with intellectual property, the World Intellectual Property Organization administers a series of conventions dealing with trademarks and copyrights. It became involved in the domain name question because of the issues of trademark infringement. As noted above, the borderless nature of the Internet creates new difficulties in administering trademarks and the WIPO was found to be the only place where disputes could reasonably be expected to be resolved. The WIPO position was set out in an "open letter to the Internet Community" in June 1997. In addition to describing and defending the procedures set out in the gTLD-MOU, the statement pointed out that:

The involvement of WIPO in the discussions concerning trademarks and Internet domain names came from the conviction, held within the International Bureau of WIPO, that the Internet itself as a means of global commerce, and domain name difficulties in particular, would drive forward the need for a rethinking of the international trademark legal system, to make that system more compatible with commercial needs on the Internet. As the international organization responsible for the promotion of intellectual property throughout the world, WIPO thought it prudent to educate itself with respect to present trademark difficulties in the area of Internet domain names.

In the process of that self-education, the WIPO International Bureau found itself providing information and insight to the Internet community on ways in which the existing trademark system could interface with the globalization of commerce on the Internet. As a result of these contacts, WIPO was invited by the Internet Society (ISOC) to name a representative to the International Ad Hoc Committee (IAHC). Part of the charter of that committee was to find ways to effectively deal with the problems of trademark-domain name conflicts, which threatened (and still threaten) to destabilize commerce on the Internet.

WTO

With the entry-into-force of the agreement on trade in telecommunications services on January 1, 1998, the World Trade Organization has become a major player in the Internet. Its role will be to ensure that there are no barriers to trade over the Internet, including, presumably, some concern with domain names.

Many of those who are critical of the ITU have suggested that the WTO should be the international organization where regulation should be focused. However, the WTO is one of the least universal of the international organizations, since many countries, like China, are not yet members.

The WTO itself will become involved because further developments of the Internet will need investments that themselves depend on an orderly market. As Gauntt puts it in his analysis of the telecommunications services agreement

In other words, a true GII requires the global capital markets, the active participation of which hinges on private sector confidence that a country's regulatory practices are anchored in a multilateral setting and subject to an international dispute settlement process. Hence, a multilateral agreement-warts and all-is a necessary step in a long process to evolve competitive global markets for broadband communications-a policy goal espoused more or less across the OECD.

The role is argued by Belz to be likely to expand in the context of the next round of WTO negotiations where the focus will be on linkages among sectoral trade agreements. She states

The Internet, as a result, is creating a new paradigm for communication services in which private and market based mechanisms are playing a larger role in setting the defacto rules of the game while at the same time increasing liberalization incentives. For the WTO, the Internet thus creates the opportunity in the next major round of negotiations (the GATS 2000) to get around the tension created by the sector-specific negotiations and accelerate the multilateral liberalization process.

 

UNCITRAL

A somewhat obscure United Nations body has also been involved with the Internet. The United Nations Committee on International Trade Law has been examining the issue of authentication. UNCITRAL is concerned with the legal nuts and bolts of international trade. It has spent considerable time concerned about the standardization of bills of lading. However, from a legal perspective, determining who is actually at the other end of an Internet connection is a significant issue. This kind of involvement is likely to increase as issues of encryption, financial transaction, transnational contracts and the like become more critical as the Internet develops.

UNHCHR

The initial involvement of the United Nations High Commissioner for Human Rights has been in the context of negative consequences of the freedom that is inherent in the Net. As an adjunct to the 1997 meeting of the Committee on the Elimination of Racial Discrimination, the monitoring body for the Convention on the Elimination of Racial Discrimination, a seminar was held to address the problem of "hate sites". The meeting brought together experts from a variety of perspectives, ranging from Internet pioneers like Tony Rutkowski through persons concerned with issues of racial prejudice like the Wiesenthal Center in Vienna. It is perhaps significant that the seminar was able to reach consensus on very few conclusions. The report on the seminar conclusions state, inter alia, that

The seminar deeply regrets and strongly condemns that the Internet is being used by some groups and persons to promote racist and hate speech in violation of international law.

The establishment of an intergovernmental working group and the appropriate role to be played by the Human Rights Commission in formulating its status and mandate was discussed and different views were expressed. No consensus was reached at the seminar regarding the proposal...

Different viewpoints were given at the seminar regarding the formulation of a code of conduct however no consensus was reached.

The seminar agreed and recommended that the Internet should be used as an educative tool to combat racist propaganda, prevent racist doctrines and practices and to promote mutual understanding.

The seminar recommends that the relevant United Nations bodies and specialized agencies, international organizations and non-government organizations address the issue of access to Internet within and among nations.

The seminar recommends that member states of the United Nations continue co-operation and establish international juridical measures in compliance with their obligations under international law, especially the ICERD, to prohibit racism form the Internet while respecting individual rights such as freedom of speech. This would be an important contribution to preparations for the World Conference on Racism and Racial Discrimination, Xenophobia and Related Intolerance.

As foreshadowed in the report of the seminar, there are many other issues of human rights implicit in the Internet: freedom of expression, economic, social and cultural rights, where regulatory decisions can have an impact.

OECD

The Organization for Economic Cooperation and Development has taken an active interest in the Internet, primarily through the promotion of electronic commerce. Its conference in 1997 in Turku, Finland was an effort to bring together both governmental and private sector leaders concerned with expanding electronic markets.

 

The problem of linkages and the need for a Framework

As the above analysis has shown, the domain names problem is only part of a complex picture. There are many linkages of internet issues, ranging through telecommunications policy, domain names, international trade, intellectual property, human rights and cultural preservation issues. There are, moreover, a large number of actors, both in terms of non-governmental constituencies and governmental. The non-governmental constituencies, the civil society of the Internet, are a heterogeneous lot: the full-freedom of expression original netizens, large corporate bureaucracies, new potential "robber baron" entrepreneurs as well as ordinary people whose interest in the Net is purely functional. The governmental actors range from state-owned telecommunications companies, national police authorities, trade ministries, defense authorities through national regulatory commissions. At the intergovernmental level, virtually all of the organizations of the United Nations system have some interest. Several, like the ITU, WTO and WIPO have a direct mandated interest.

The playing field of the Internet is not level, and there are a large number of teams trying to play. There may not even be a consensus on where the goal posts are located, how scoring is done and how winners can be determined.

Under these circumstances, regulation takes on a particular meaning. Any effort to create a regulatory solution for one part of the internet has a great probability of creating a new problem for another. The speed of technological change -- the application of Mooreís law -- makes most technological fixes obsolete before they are made. The major players in innovation are almost never public authorities.

And yet, it is manifestly clear that some form of regulation is necessary to maintain the coherence of the Internet in the context of technological and economic change.

This poses a particular opportunity for the international public sector. Unlike national regulatory authorities, international organization lack the attribute of sovereignty: they can make few, if any, mandatory rulings. Rather, they can reach, with the concerned parties, a form of understanding about the rules of the game. The standard international mode of decision-making is consensus. This is also the mode that, for its initial years, governed decision-making in the Internet. The correspondence in method is striking.

The question to be answered, then, is how to establish a regulatory framework at the international level that will permit change and adaptation to occur without the negatives that come from market imperfections and bad national public policy. Clearly, there must be an initial, very broad agreement, on the governance rules for the Internet.

This point has been recognized by the European Union, which, in their March 6, 1998 Green paper stated:

The global electronic marketplace requires an appropriate framework covering technical, commercial, and legal aspects. This should foster interoperable technical solutions, competitive business practices and consistent rules. It does not need to consist of detailed and harmonised rules on all relevant aspects.

A number of obstacles needing to be addressed by this framework have been identified above. As to their priority, views may differ, but some of the issues can already be recognised today as requiring the urgent and coordinated attention of the international community. Among these priorities there are issues such as consensus on the Domain Name System, agreement on binding data protection rules, reducing communication costs, providing certainty in taxation, and agreeing on the legal implications of electronic authentication.

Because of the fast-moving environment which characterises electronic communications and commerce, some of the issues may be resolved relatively soon, others may prove to be significant bottlenecks, whilst others are yet to emerge. The development of an international framework must therefore be based on a forward-looking and flexible approach.

The above analysis makes it clear that increasingly issues touch upon legal frameworks. It is increasingly necessary to examine them at a global level as uncertainty surrounding different national and regional responses to these challenges will hamper the further development of the electronic marketplace.

Therefore, a broad dialogue on the key issues amongst public authorities, industry, consumers and international organisations should be envisaged.

The Union proposed a ministerial level conference on the question. However, this conventional approach has one difficulty: which ministers? And, what about the other players.

An alternative is to organize under the widest possible international aegis, a process of elaborating what could be termed, not a charter, but rather a framework convention on the Internet. The purpose of this document, which would have to be agreed among governments but would require the consent of all of the Internet constituencies, would be to set out clearly the principles, norms and procedures necessary for smooth, efficient and just operation of the Net. It would create an Internet Regime.

The precedent for this kind of approach has been clearly established through both the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992 and the Fourth World Conference on Women at Beijing in 1995. Both conferences drew their representation and their strength from a broad range of interests that went well beyond nation-states. They served to involve interested parties, to allow them to help shape the outcome and, by having seen their input reflected, they have accepted, in large measure, its commitments.

More specifically, the run-up to Rio included the negotiation of the United Nations Framework Convention on Climate Change, a document which merely set the basis for subsequent negotiations such as that recently concluded in Kyoto in December 1997. This provides a very useful model for looking at Internet regulation.

However, there has been in the context of the central intergovernmental bodies of the United Nations almost no interest in this subject. The wider political and economic implications of the growth of the Global Information Structure have not yet found resonance and, as a result, many of the key linkages of issues which will ultimately require some form of framework document have not been made. A case in point, is the relationship of the economic growth of the Internet with the need for universal service provision which, in United Nations terms translates as means to provide the investment resources to the developing countries in quantities sufficient to bring them into the GII.

The involvement of the central United Nations intergovernmental bodies and their secretariats in the issues of Internet regulation may be inevitable, but will only occur quickly if the Internet constituencies see the virtue of involving them as a means of establishing linkages. The cost of not doing so will be that segmented regulation -- without an overarching agreement on principles and norms -- will take place and will be difficult to reverse. A better alternative is to do what has always been done in successful regime creation: agree on the basics first and make sure that all of the concerned parties are in on the agreement.