7.1 IAHC and the gTLD-MoU

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In October 1996 the Internet Society (ISOC) seems to have recognized that if it were to succeed in its mission to assert control of the root, it would have to break new institutional ground. Drawing on the contacts formed during the ongoing debates and conferences, the Internet Society put together what it called a 'blue ribbon international panel' to develop and implement a blueprint for a global governance structure for the domain name system. ^{[2 ]}The 11-member group (see table 7.1) was named the International Ad Hoc Committee (IAHC).

Table 7.1: The Composition of the IAHC

Name	Affiliation
Don Heath, Chair	Internet Society
Sally Abel	International Trademark Association
Albert Tramposch	World Intellectual Property Association
David Maher	Intellectual property attorney (selected by ISOC)
Jun Murai	Keio University, Japan, WIDE Project (selected by IAB)
Geoff Huston	Telstra, Australian education and research Internet (selected by IAB)
Hank Nussbacher	IBM Israel (selected by ISOC)
Robert Shaw	International Telecommunication Union
Perry Metzger	Internet Engineering Task Force (selected by IANA)
David Crocker	Internet Engineering Task Force (selected by IANA)
George Strawn	National Science Foundation (selected by FNC)

The IAHC initiative reflected the continuing desire of the Internet Architecture Board (IAB), Postel, and the Internet Society to formalize their nowcontested authority over the root and introduce a competitive alternative to Network Solutions. It included two representatives of the Internet Architecture Board, two members appointed by IANA (i.e., by Postel), and two appointed by the Internet Society. But the committee considerably expanded the definition of the relevant community. The IAHC included two representatives of trademark holders, one appointed by the International Trademark Association (INTA) and another by the World Intellectual Property Organization (WIPO). The International Telecommunication Union (ITU) was given one representative, as was the Federal Networking Council (FNC). According to the FNC minutes, the FNC sought membership on the advisory committee 'in recognition of the government's historic stewardship role in this sector' (Simon 1998).

The IAHC was chaired by Don Heath, the Internet Society's new chief executive officer. Heath, a Cerf protÈgÈ, came to ISOC via MCI Telecommunications in May 1996 and was highly enthusiastic about forging a new, expanded role for ISOC. ^{[3 ]}But it was Internet Society president Lawrence Landweber who acted as the catalyst of the ambitious plans. Landweber insisted that the IAHC include representatives from outside the technical community and that invitations be sent to organizations acting as formal representatives rather than as individuals. He also urged Heath to chair the IAHC on behalf of the Internet Society. ^{[4 ]}

In political terms, the committee represented a coalition between the technical community's governing hierarchy (ISOC/IAB/IANA) and other political forces that had contested the ISOC claim on the root in the previous round: trademark owners, the ITU, and the FNC. All were incorporated into the planning process and (FNC excepted) would later be given permanent roles in the proposed governance regime. The political coalition was also notable for whom it excluded. Network Solutions was not invited to be a part of the group. Neither were any representatives of the alternative registries. There was no representative of commercial Internet service providers. ^{[5 ]}

Even though its membership was dominated by the technical community's governing hierarchy, the IAHC's procedures broke sharply with IETF procedures and norms. The newdom process had been based, roughly, on the procedures set out in RFC 1591. That process was simply ended and its results discarded. Participation in the IAHC was not open, meetings were closed, and no official minutes were kept of the deliberations. An aggressive schedule was imposed, with extra urgency added by the circulation of Vixie's threat only a few days after the group's formation. The committee's charter was released on November 11, 1996, and public comments were solicited via email. Only three months later, a final report laid out a new system of Internet governance (IAHC 1997).

The IAHC completely jettisoned Postel's series of drafts and the claims of the alternative registries. Instead, the final report started with the principle that 'the Internet top-level domain (TLD) name space is a public resource and is subject to the public trust.' That language had been promoted by the ITU's Shaw and reflected concepts never before used in the Internet arena but well known in the context of state-owned or stateregulated post, telephone, and telegraph companies. The language attempted to situate the Internet's name and number resources within the normative principles used by the ITU to administer regulated public telecommunication services, numbering resources, radio spectrum, and satellite slots (Rutkowski 1997).

The IAHC report also diverged sharply from draft-postel by proposing shared rather than exclusive top-level domains. It conceived of the registry database as a natural monopoly and sought to separate the 'wholesale' operation of the monopoly registry database from the 'retail' function of registering names for customers, billing them, and maintaining contact information. The former function was called the registry and the latter the registrar. Under the IAHC plan, a global monopoly registry would be administered on a nonprofit basis. The registry would be co-owned by multiple, competing registrars, who would all share access to the same top-level domains. The number of registrars was artificially limited to 28 companies in order to ensure that the initial group would be a manageable size for developing technical and operational details. The 28 companies would be selected by lottery, with four coming from each of seven global regions. In short, the plan created a cartel, with entry into it governed by norms of geographical equity. This was a typical outcome for an international, intergovernmental organization, but highly atypical of the Internet.

Another dramatic change was that the new system proposed by IAHC linked trademark protection procedures directly to the administration of the DNS. This important but controversial innovation was meant to eliminate the trademark owners' objections to new TLDs by giving them extraordinary power over domain name registrations. Domain names would not be operational until after a 60-day waiting period, during which they would be subject to review by 'administrative challenge panels' run by WIPO. Neither the law nor the legal principles WIPO would use to resolve disputes were specified. IAHC also proposed to exclude from the domain name space all names that corresponded to or resembled 'famous' trademarks. Finally, the proposal imposed an artificial limit on the number of top-level domains. Whereas Postel had originally thought in terms of hundreds of new descriptive top-level domains and annual additions of more, IAHC proposed to add only seven. ^{[6 ]}The final report did not make any commitments to add more. This, too, was a concession to the trademark interests. The smaller the name space, the easier their policing problem. Thus, the IAHC expanded the name space slightly but treated it as a regulated cartel.

The IAHC also established a corporate structure that straddled the boundary between the public and private sectors. The overarching framework of the governance structure was a document known as the Generic Top-Level Domain Memorandum of Understanding (gTLD-MoU). The preamble of the gTLD-MoU claimed that the agreement was made in the name of 'the Internet community,' an attempt by the drafters to recall the small-scale, communitarian, consensus-based regime of the ARPANET and the early IETF.

In the proposed plan, registrars would be incorporated in Geneva, Switzerland, as a nonprofit Council of Registrars (CORE). To join CORE, registrars had to pay a US$20,000 entry fee and US$2,000 per month, plus an anticipated but as yet unspecified fee to the registry for each domain name registration. The top governance authority was a committee designated as the Policy Oversight Committee (POC). POC's membership would mirror the composition of the IAHC: two members were to be appointed to it by the Internet Society, the Internet Architecture Board, IANA, and CORE; one member each was to be appointed by ITU, INTA, and WIPO. In formulating policy the POC would issue requests for comments just as a regulatory commission might. There was also a Policy Advisory Board (PAB), a consultative body that any signatory to the gTLD-MoU could join. For the Internet technical hierarchy, the structure was intended to provide a vehicle for taking possession of the Network Solutions registry after the expiration of the Cooperative Agreement in April 1998. Network Solutions would be encouraged to participate in CORE as a registrar but would no longer have any control over the .com, .net, and .org registry (Simon 1998). ITU Secretary-General Dr. Pekka Tarjanne hailed the MoU as an embodiment of a new form of international cooperation he called 'voluntary multilateralism.' ^{[7 ]}The ITU volunteered to serve as the official repository of the MoU and took on the tasks of circulating it to public and private sector entities involved in telecommunication and information, inviting them to sign it. It also offered to 'facilitate further co-operation in the implementation of this MoU.'

The gTLD-MoU was signed by Heath and Postel on March 1, 1997. The Internet Society and ITU then organized an official signing ceremony in Geneva at the end of April in an attempt to assume all of the trappings of an international treaty agreement. Members of the IAHC conducted an international series of promotional meetings and press releases to win acceptance of the proposal. Yet the Internet Society and IANA still had no more formal legal authority over the root than they had had in mid-1996.

^{[2 ]}News Release, ISOC, Washington, D.C., October 22, 1996, 'Blue Ribbon International Panel to Examine Enhancements to Internet Domain Name System.'

^{[3 ]}Interview with Don Heath, June 19, 2000; interview with David Conrad, August 23, 2000.

^{[4 ]}Interview with Scott Bradner, July 19, 2000.

^{[5 ]}Heath later stated that he had wanted to add a CIX representative to the group (Simon 1998).

^{[6 ]}The seven proposed gTLDs were .web, .info, .nom, .firm, .rec, .arts, .store.

^{[7 ]}Pekka Tarjanne, 'Internet Governance: Toward Voluntary Multilateralism,' Keynote address, Meeting of Signatories and Potential Signatories of the Generic Top-Level Domain Memorandum of Understanding (gTLD-MoU), ITU, Geneva, April 29-May 1, 1997.

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