Article - US Government Revises Policy on Domain Names (June 1998)
- Principles for a New System
- Trademark Issues
- The Transition
- The .us TLD
- Full text of the white paper
The US Government has released a White Paper outlining its revised policy on the administration of the domain name system (See INTLB 1.3 for background). The long awaited policy appears less controversial than earlier versions, and sets out the way forward for reform of the process of registering domain names.
The US Government is now seeking international support for the establishment of a new, not-for-profit corporation formed by private sector Internet stakeholders to administer policy for the domain name system.
It is proposed that the new corporation will undertake various responsibilities for the administration of the domain name system now performed by or on behalf of the US Government or by third parties under arrangements with the US Government.
Day-to-day operational tasks, such as the actual operation and maintenance of the Internet root servers, will continue to be dispersed. However, overall policy guidance and control of the top level domains (TLDs) and the Internet root server system will be vested the new body. The paper does not make any recommendations in relation to the development of new TLDs.
The White Paper invites Internet stakeholders to work together to form a new, private, not-for-profit corporation to manage DNS functions. This article sets out the main issues considered in the White paper in relation to the establishment of this new entity.
Principles for a New System
In making a decision to enter into an agreement to establish a process to transfer current US government management of DNS to the new entity, the US state that they will be guided by the following principles:
The US Government should end its role in the Internet number and name address system in a manner that ensures the stability of the Internet. The introduction of a new management system should not disrupt current operations or create competing root systems. During the transition and thereafter, the stability of the Internet should be the first priority of any DNS management system. Security and reliability of the DNS are important aspects of stability, and as a new DNS management system is introduced, a comprehensive security strategy should be developed.
Where possible, market mechanisms that support competition and consumer choice should drive the management of the Internet.
3. Private, Bottom-Up Coordination
Certain management functions require coordination. In these cases, responsible, private-sector action is preferable to government control. A private coordinating process is likely to be more flexible than government and to move rapidly enough to meet the changing needs of the Internet and of Internet users. The private process should, as far as possible, reflect the bottom-up governance that has characterised development of the Internet to date.
The new corporation should operate as a private entity for the benefit of the Internet community as a whole. The development of sound, fair, and widely accepted policies for the management of DNS will depend on input from the broad and growing community of Internet users. Management structures should reflect the functional and geographic diversity of the Internet and its users. Mechanisms should be established to ensure international participation in decision making.
The White paper suggests that the new corporation ultimately should have the authority to manage and perform a specific set of functions related to coordination of the domain name system, including the authority necessary to:
- Set policy for and direct allocation of IP number blocks to regional Internet number registries;
- Oversee operation of the authoritative Internet root server system;
- Oversee policy for determining the circumstances under which new TLDs are added to the root system; and
- Coordinate the assignment of other Internet technical parameters as needed to maintain universal connectivity on the Internet.
The White paper suggests that the new corporation could be funded by domain name registries, regional IP registries, or other entities identified by the Board.
In submissions in response to the earlier Green paper, many stakeholders argued that the existing administrative body, IANA, could ‘evolve’ into the new entity (with a new Board of directors). The Paper says that the US anticipates that the new corporation would want to make arrangements with current IANA staff to provide continuity and expertise over the course of transition.
The White Paper suggests that the new corporation’s organisers will include representatives of regional Internet number registries, Internet engineers and computer scientists, domain name registries, domain name registrars, commercial and non-commercial users, Internet service providers, international trademark holders and Internet experts highly respected throughout the international Internet community. This would include substantial representation from around the world.
The paper recommends that the new corporation should be headquartered in the United States, and incorporated in the US as a not-for-profit corporation. The reader gets the feeling that this matter is ‘not negotiable’.
The Paper suggests that the organisation and its board can derive ‘legitimacy’ from the participation of key stakeholders. The new corporation should:
Appoint, on an interim basis, an initial Board of Directors (an Interim Board) consisting of individuals representing the functional and geographic diversity of the Internet community. The Interim Board could serve for a fixed period, until the Board of Directors is elected and installed.
Direct the Interim Board to establish a system for electing a Board of Directors for the new corporation that insures that the new corporation’s Board of Directors reflects the geographical and functional diversity of the Internet, and is sufficiently flexible to permit evolution to reflect changes in the constituency of Internet stakeholders. Nominations to the Board of Directors should preserve, as much as possible, the tradition of bottom-up governance of the Internet, and Board Members should be elected from membership or other associations open to all or through other mechanisms that ensure broad representation and participation in the election process.
Direct the Interim Board to develop policies for the addition of TLDs, and establish the qualifications for domain name registries and domain name registrars within the system.
Restrict official government representation on the Board of Directors without precluding governments and intergovernmental organisations from participating as Internet users or in a non-voting advisory capacity.
The Paper recommends that the new corporation should be governed on the basis of a sound and transparent decision-making process, which protects against capture by a self-interested faction, and which provides for robust, professional management of the new corporation.
The new corporation could rely on separate, diverse, and robust name and number councils responsible for developing, reviewing, and recommending for the board’s approval policy related to matters within each council’s competence. Such councils, if developed, should also abide by rules and decision-making processes that are sound, transparent, protect against capture by a self-interested party and provide an open process for the presentation of petitions for consideration. The elected Board of Directors, however, should have final authority to approve or reject policies recommended by the councils.
The paper recommends that the new corporation’s processes should be fair, open and pro-competitive, protecting against capture by a narrow group of stakeholders:
‘Typically this means that decision-making processes should be sound and transparent; the basis for corporate decisions should be recorded and made publicly available. Super-majority or even consensus requirements may be useful to protect against capture by a self-interested faction.’
The new corporation’s charter should provide a mechanism whereby its governing body will evolve to reflect changes in the constituency of Internet stakeholders. The new corporation could, for example, establish an open process for the presentation of petitions to expand board representation.
Trademark holders and domain name registrants and others will be provided with access to searchable databases of registered domain names that provide information necessary to contact a domain name registrant when a conflict arises between a trademark holder and a domain name holder. The following information will be included in all registry databases and available to anyone with access to the Internet:
- Up-to-date registration and contact information
- Up-to-date and historical chain of registration information for the domain name
- A mail address for service of process
- The date of domain name registration
- The date that any objection to the registration of the domain name is filed
- Any other information determined by the new corporation to be reasonably necessary to resolve disputes between domain name registrants and trademark holders expeditiously.
Further, the US Government recommends that the new corporation adopt policies whereby:
- Domain registrants pay registration fees at the time of registration or renewal and agree to submit infringing domain names to the authority of a court of law in the jurisdiction in which the registry, registry database, registrar, or the ‘A’ root servers are located.
- Domain name registrants would agree, at the time of registration or renewal, that in cases involving Cyberpiracy or Cybersquatting (as opposed to conflicts between legitimate competing rights holders), they would submit to and be bound by alternative dispute resolution systems identified by the new corporation for the purpose of resolving those conflicts. Registries and Registrars should be required to abide by decisions of the ADR system.
- Domain name registrants would agree, at the time of registration or renewal, to abide by processes adopted by the new corporation that exclude, either pro-actively or retroactively, certain famous trademarks from being used as domain names (in one or more TLDs) except by the designated trademark holder.
Nothing in the domain name registration agreement or in the operation of the new corporation should limit the rights that can be asserted by a domain name registrant or trademark owner under national laws.
Based on the processes described above, the US Government argues that certain actions must be taken by the government itself, while others will need to be taken by the private sector.
For example, a new not-for-profit organisation must be established by the private sector and its Interim Board chosen. Agreement must be reached between the US Government and the new corporation relating to transfer of the functions currently performed by IANA. NSI and the US Government must reach agreement on the terms and conditions of NSI’s evolution into one competitor among many in the registrar and registry marketplaces.
A process must be laid out for making the management of the root server system more robust and secure. A relationship between the US Government and the new corporation must be developed during the period of transition of the DNS management to the private sector and the transfer of management functions.
During the transition the US Government expects to:
- Finalise a cooperative agreement with NSI with the objective of introducing competition into the domain name space.
- Enter into agreement with the new corporation under which it assumes responsibility for management of the domain name space.
- Ask the World Intellectual Property Organisation (WIPO) to convene an international process including individuals from the private sector and government to develop a set of recommendations for trademark/domain name dispute resolutions.
- Consult with the international community, including other interested governments as it makes decisions on the transfer.
- Undertake a review of the root server system to recommend means to increase the security and professional management of the system.
The .us TLD
The White paper acknowledges that there are a number of problems caused by the lack of use of the .us domain space. It states that ‘Over the next few months, the U.S. Government will work with the private sector and state and local governments to determine how best to make the .us domain more attractive to commercial users.’
Full text of the white paper
The submissions to the Green paper and the full text of the White paper are available at: http://www.ntia.doc.gov/ntiahome/domainname/