7.2 Political Reaction to the gTLD-MoU | Ruling the Root: Internet Governance and the Taming of Cyberspace

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The gTLD-MoU was a turning point in the evolution of Internet governance. Control of the root ceased to be a subject of discourse in conferences, mailing lists, and memos, and became the object of an outright power struggle played out in an international arena. The policy agendas of the actors, both pro and con, became more sharply defined; where there were conflicts of interest, lines were drawn and factions formed. Contention among these factions then drew into the fray governmental actors with higher levels of policymaking authority.

'The MoUvement,' as its proponents came to call the gTLD-MoU, marked a sharp break with the governance arrangements of the academic Internet-the Internet of DARPA, the IETF, and the National Science Foundation. This was true for several reasons. The initiative formally involved actors and organizations new to Internet administration, such as the intellectual property interests and international organizations. But the technical community itself was altered in important ways. Established IETF procedures had been abandoned. The technical community's leadership-IAB, IANA, and ISOC-had thrust themselves directly into a highly politicized arena, moving away from their past focus on technical standards setting and embracing a new role as policymakers and regulators. The political, personal, and economic alliances that went into the complicated MoU compromised their neutrality, making them into partisan defenders of a particular view of the domain name registration industry. The close ties between the Internet Society and CORE, the consortium of commercial registrars that would financially support the new governance arrangement and replace Network Solutions as the operational home of the root, set ISOC and its allies on a collision course with Network Solutions. The MoUvement's alliance with intergovernmental organizations and its insistence on its right to assume control of the root on its own initiative set it on a collision course with the U.S. government.

By asserting such a bold and unequivocal claim to the root and forming an international coalition to back it up, the IAHC advanced and polarized the governance debate. Other key actors were forced to clarify their positions, put forward their own claims, and seek support for them.

7.2.1 Network Solutions

Network Solutions was the obvious target of the gTLD-MoU. Publicly, Network Solutions reacted to the draft IAHC proposal in a cautious, noncommittal way, stressing its willingness to work with the committee to achieve consensus. ^{[8 ]}Similarly, MoUvement spokespeople publicly encouraged NSI to sign on as a registrar and publicized their expectation that it eventually would. But no one was fooled. The gTLD-MoU was fundamentally inimical to Network Solutions' economic interests. As events progressed, the company began to use its lobbying muscle within the United States to undermine and defeat the agreement.

Early in 1997, Network Solutions was preparing for an initial public offering of stock that would bring in hundreds of millions of dollars. Its increasingly profitable control of the .com domain was the engine of its stock market value. The prospect of losing control of the .com registry to a Geneva-based corporation run by avowed enemies and of competing on price with dozens of new registrars in the .com space could not have been an attractive one. Network Solutions' preferred outcome was a permanent property right in the .com, .net and .org top-level domains, with competition taking the form of new registries with exclusive control of new toplevel names, as proposed in draft-postel. Thus, a Network Solutions spokesman told the press in April 1997, 'It is not our intention to share .com or the other [top-level domains] we register. Those would obviously [be] assets that we've developed . . . much as Microsoft wouldn't share DOS [disk operating system].' ^{[9 ]}In its initial public offering documents, Network Solutions repeatedly referred to .com as its 'brand' and also asserted property rights over 'a database of information relating to customers in its registration business.' ^{[10 ]}

Network Solutions at this point came to explicitly support the claim of the U.S. government to authoritative control over the root. NSI was persona non grata within the ISOC-dominated technical community. It was also perceived with hostility by foreign governments and businesses, as a symbol of U.S. dominance of the Internet and the cause of the domain name turmoil. In contrast, the company was well positioned in Washington D.C. Backed by the lobbying and financial resources of its parent company, SAIC, and as a longstanding government contractor, it found a U.S.-centered institutional framework more predictable and more amenable to its interests.

7.2.2 The Alternative Registries

The (mostly North American) entrepreneurs who had been positioning themselves to occupy top-level domains under the framework created by draft-postel were outraged by the results of the IAHC. Their business model had been explicitly precluded by the proposed regime. Adding injury to insult, the IAHC proposed to occupy two of the top-level domain names staked out by entrepreneurs (.web and .arts). The alternative registries questioned the fairness and openness of the IAHC's procedures as well as its substantive policy decisions. ^{[11 ]}Their previous attacks on the legitimacy of IANA and the process that had produced draft-postel notwith-standing, they characterized the IAHC as an illegitimate power grab. One alternative registry tried to fight the MoUvement with litigation. In February 1997, Chris Ambler, prospective proprietor of the .web top-level domain, sued IANA in California for violating his prior-use and intellectual property claims in .web. The complaint was withdrawn without prejudice before a final ruling could be issued, but the judge appeared to be unsympathetic to his case. ^{[12 ]}

In March 1997 a group of six small Internet service providers and three other businesses met in Atlanta in an attempt to organize to revive the fortunes of the alternative root movement. Calling themselves Enhanced Domain Name Service (eDNS), they attempted to set up an alternative root server network that would support many new TLDs as well as the established ones.

Opposition to the gTLD-MoU began to bring some members of the alt.root community into a tactical alliance with Network Solutions at this point. Both interests were proposing a similar economic model for the toplevel domain name registries, and both believed that resolving the policy issues within the legal and institutional framework of the United States was more likely to produce results to their liking.

7.2.3 American Civil Society Groups

By now the domain name wars were reaching groups and interests outside the immediate purview of Internet infrastructure. The broad societal reaction was mixed, with most actors viewing the gTLD-MoU as unrepresentative and preemptive even though they supported competition and some kind of institutional change.

The gTLD-MoU aroused the opposition of U.S.-based civil liberties organizations concerned about their lack of representation and the power that the proposals gave to trademark interests and international organizations. Free-speech advocates, already mobilized by abuses of Network Solutions' dispute resolution policy, now believed that even more sweeping rights were being given to intellectual property holders. Kathy Kleiman, the general counsel for the Domain Names Rights Coalition, claimed that 'the committee has . . . no representation of small business, individuals, or attorneys who support limits on trademark law. The draft favors large trademark owners who can stop others from using even common names on the Internet. The underlying premise is that a domain name is a trademark, and that premise is fundamentally flawed.' ^{[13 ]}Other public interest organizations, such as Computer Professionals for Social Responsibility, accused the IAHC process of being 'closed, rushed, and unbalanced' and asked for more time for input from consumers and the public. ^{[14 ]}While these civil society groups were usually critical of Network Solutions and looked forward to competition in the domain name industry, they did not see the gTLD-MoU as an acceptable solution. Being based in the United States, they, too, tended to support resolving the controversies within a U.S.-based institutional framework, often invoking the First Amendment and other rights derived from the U.S. Constitution.

7.2.4 European Commission

Reflecting the lower level of Internet penetration in Europe at that time, European governments and civil society groups were mostly unaware of the emerging governance wars, except for policy specialists and organizations directly involved in domain name registration and internetworking. The European Union was monitoring domain name issues through its Directorate General 13, the branch in charge of telecommunication policy. Following the release of the gTLD-MoU proposal, the DG-13 official Christopher Wilkinson wrote to the Internet Society's Don Heath on January 17, 1997, expressing dissatisfaction with the lack of European participation and the inadequate amount of time provided for consultation. Wilkinson then convened a meeting of European Internet community members. ^{[15 ]}The meeting was attended by representatives of nine top-level domain administrators of member states, Daniel Karrenberg of RIPENCC, and a few commercial Internet service providers. The attendees reached a consensus that they should not sign the gTLD-MoU.

Drawing on the results of this meeting, the European Commission DG-13 sent comments to the U.S. State Department and other federal agencies expressing dissatisfaction with the IAHC proposal. ^{[16 ]}The commission called for 'further public debate' and direct European participation. Although specific criticisms were made of the dominance of English words in the new top-level names, the selection of registrars by lottery, and issues related to the sharing of top-level domains, the main underlying concern seems to have been that the process was moving too fast and was driven primarily by U.S.-based organizations and interests.

7.2.5 Business Community

Reaction in the international business community was not uniform. Because of the leading role of the ITU, the gTLD-MoU attracted significant support from telephone companies outside the United States. Eventually, France Telecom, Deutsche Telekom, Telecom Italia, Sweden's Telia AB, Japan's KDD, Bell Canada, and Australia's Telstra became signatories. MCI was an early supporter because of the influence of Vint Cerf within that organization; moreover, MCI used its leverage as a major purchaser of Digital Equipment Corporation products to get Digital to sign, too. Indeed, it was the participation of the ITU and the support of old-line telephone companies that unnerved many of the gTLD-MoU's opponents; it appeared as if the Internet were being taken over by the old guard. Another significant source of business support for the plan, however, came from small Internet service providers (ISPs) and prospective domain name registration firms in Europe and Asia, which saw a chance to make inroads into a business dominated by U.S. companies. Companies like Melbourne IT, an Australian ISP, and NetNames, an international domain name consultancy, joined forces with the MoUvement early on.

On the other hand, major multinationals such as IBM, British Telecom, Bell Atlantic, and AT&T opposed the MoU or refused to lend their support. These companies had little or no interest in the business opportunities presented by an expanded name space. They were primarily concerned about the effect of new top-level domains on trademark protection. In later comments, for example, AT&T criticized the gTLD-MoU proposal as being insufficiently protective of trademarks in the domain name space, and the proposed governance structure as having 'insufficient representation' of trademark holders. ^{[17 ]}

^{[8 ]}Network Solutions' Preliminary Response to the IAHC's Draft Specifications for the Administration and Management of gTLDs, January 17, 1997.

^{[9 ]}Cited in Wired News, April 24, 1997, <http://www.wired.com/news/politics/ >.

^{[10 ]}<ftp://www.sec.gov/edgar/data/1030341/0000950133-97-002418.txt>.

^{[11 ]}Jay Fenello, the would-be proprietor of a .per top-level domain for personal names, criticized 'the chaos the entire IAHC process has created in the Internet community. Their arrogance about their dominion over the root, and their claim to rightful ownership of such valuable properties like .com and .web have created the conflicts we are now experiencing. A fundamental question is why the IANA, a U.S. government funded contractor, should be allowed to 'give' seven new gTLDs to its self-selected representatives (especially when it negotiates behind closed doors, sets up a Swiss-based cartel, ignores prior Internet precedents, and is generally regarded as an inappropriate power grab). Why should the IANA be allowed to exclude already operational [alternative] TLDs and registries?' <http:// www.ntia.doc.gov/ntiahome/domainname/130dftmail/02_13_98.htm>.

^{[12 ]}Imagine Online Design v. IANA, Superior and Municipal Court of the State of California, for the County of San Luis Obispo, Case CV080380, February 27, 1997, <http://www.jmls.edu/cyber/cases/iod1.html>.

^{[13 ]}John Fontana, 'Net Domain Plan Draws Fire,' CMP News, Issue 644, January 6, 1997.

^{[14 ]}Comments of Computer Professionals for Social Responsibility in the NTIA proceeding, August 18, 1997, <http://www.cpsr.org/dns/cpsr_dns1.html>.

^{[15 ]}'EU Commission Meeting with TLD Registry Representatives,' report by Niall O'Reilly, University College Dublin Computing Services, April 1997, archived at <http://www.fitug.de/debate/9704/msg00078.html>.

^{[16 ]}Kent Cukier, 'EC Urges Halt to IAHC Plan.' Communications Week International, April 21, 1997.

^{[17 ]}Comments of AT&T in the NTIA Notice of Inquiry, August 18, 1997, <http:// www.ntia.doc.gov/ntiahome/domainname/email/8_18_97comments.htm>.

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