7.4 The U.S. Government Intervenes | Ruling the Root: Internet Governance and the Taming of Cyberspace

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Up to this point the most powerful potential claimant of the root, the U.S. government, had not taken any initiative. The gTLD-MoU and other developments, however, made it impossible to continue doing nothing. The controversies generated by the gTLD-MoU, the Name.Space litigation, and the impending expirations of IANA's funding and the Network Solutions Cooperative Agreement forced the federal government to either yield or assert responsibility.

7.4.1 The National Science Foundation Exits

The National Science Foundation decided to let go. Both Network Solutions and the Internet technical hierarchy had strong ties to the agency, and NSF seemed to have been immobilized by the bitter feud developing between them. By early 1997 the agency wanted only to extract itself from the whole controversy. ^{[23 ]}

In April 1997 the NSF brushed aside a report from its own Inspector General's Office calling for continued federal oversight of Internet names and numbers. ^{[24 ]}The report had argued for the imposition of fees on names and addresses to 'supplement the government's investment in the Internet.' The NSF response noted that regulation and taxation of Internet addresses was 'not an appropriate function' for the agency. Instead, it pointed to the IAHC proposals to privatize DNS as one of several 'next-step solutions that are being implemented' and spoke glowingly of the Internet Society as an 'an international organization whose members reflect the breadth of the entire Internet community.' ^{[25 ]}The statement announced that NSF had 'no plans to renew or to recompete [the NSI] Cooperative Agreement.' ^{[26 ]}

In fact, a few months before, NSF and Network Solutions had agreed in principle to terminate the 1993 Cooperative Agreement a year early, on April 1, 1997. Early termination of the agreement would have given Network Solutions de facto property rights in the .com, .net, and .org registry. Depending on the conditions of the termination, it could have left unresolved the question of whether NSI had property rights in the database of domain name registrants. And it would have further clouded the issue of who had the authority to add new top-level domains to the root. NSF and Network Solutions were also making plans to spin off the IP address registry functions from Network Solutions to an independent American Registry for Internet Numbers (ARIN). ^{[27 ]}One Internet veteran wrote that 'it's my feeling the NSF is acting to simply walk away from the situation, leaving it among the contestants, NSI being the strongest, to duke it out.' ^{[28 ]}

NSF's exit strategy, however, was interrupted by the intervention of a White House-led Interagency Working Group (see section 7.4.2).

Members of the interagency group wanted more time to consider the issues and the implications of various options before any decisive action was taken. NSF was not allowed to terminate the Network Solutions contract early. Other steps taken at this time seem to have been designed to ensure that the federal government would continue to have direct leverage over the outcome. When Jon Postel's DARPA funding ended in April 1997, for example, he appealed to the private sector IP address registries for support.

The U.S. government suddenly came up with funds from the Energy Department and NASA to continue funding Postel. ^{[29 ]}

7.4.2 The White House and the Commerce Department Enter

With the NSF no longer able to set policy, responsibility for formulating U.S. government policy was assumed by the presidential policy adviser Ira Magaziner. Magaziner headed an Interagency Task Force created in December 1995 to develop policy on Global Electronic Commerce on the Internet. As the e-commerce guru for the Clinton administration, Magaziner had made 'private sector leadership' the key principle guiding administration policy. ^{[30 ]}The emphasis on private sector solutions and industry selfregulation was strongly supported by major industry actors such as MCI Telecommunications, IBM, PSINet, and AT&T.

Domain name issues did not attract Magaziner's attention until December 1996, when the U.S. Patent and Trademark Office, with the backing of the U.S. Department of Commerce, moved to initiate a Notice of Inquiry on trademarks and domain names. According to Magaziner, 'I heard them raising a concern that was backed up by a number of business people that if you ignored trademarks in the issuance of domain names, it could have a negative commercial impact.' ^{[31 ]}Magaziner had also become aware of NSF's attempt to terminate the Network Solutions contract early, and learned that IANA's DARPA contract was also set to expire in April. Ironically, Magaziner's concept of private sector leadership did not countenance simply walking away. Some voices within the administration and in the corporate world believed that the stability of the Internet would be threatened unless the government created formal arrangements to replace IANA and InterNIC. Magaziner responded by forming a separate Interagency Working Group on domain names in March 1997.

The Interagency Working Group was chaired by Brian Kahin of the White House Office of Science and Technology Policy. Kahin's eventual cochair was J. Beckwith Burr, a lawyer from the Federal Trade Commission who later moved to the Commerce Department when it became the lead agency for the U.S. policy intervention. ^{[32 ]}Representatives from the National Science Foundation, the Defense Department, the Federal Communications Commission, the Justice Department, the Patent and Trademark Office, and the State Department all participated.

Initially, the U.S. government reacted negatively to the IAHC proposals. The leading role of the ITU in particular seems to have generated antipathy. The Working Group was only a few weeks old when the ITU issued its invitation to the gTLD-MoU's meeting of signatories and 'potential signatories,' scheduled for May 1. A sharply worded reply cable from Secretary of State Madeline Albright to the U.S. mission in Geneva questioned the ITU's authority to call a full meeting of member states without the authorization of national governments. Albright noted that 'the USG has not yet developed a position on any of the proposals to reform the Internet domain name system, including the gLTD-MoU [sic], nor on the appropriate role, if any, of the ITU, WIPO, or other international organizations in the administration of the Internet.' ^{[33 ]}On May 2, the U.S. press reported that the Interagency Working Group would not support the gTLD-MoU. An unidentified member of the group was quoted as saying, 'We are concerned about the possibility that [international] organizations will have too great a role in the process and we won't have a private sector-driven process. There are also some concerns,' the unnamed official said, 'about addressing an Internet-related issue in a forum that has traditionally done telecommunications regulation, like the ITU.'

The working group spent the rest of the spring preparing for a formal public proceeding to solicit input on how to handle the transition. The Commerce Department was chosen to replace the National Science Foundation as the lead agency, and Burr was transferred there. Within the Commerce Department, responsibility for handling the proceeding was assigned to what many considered to be a 'weak, understaffed' ^{[34 ]}branch, the National Telecommunications and Information Administration (NTIA). On July 1, 1997, a Presidential Executive Order authorized the Secretary of Commerce to 'support efforts to make the governance of the domain name system private and competitive and to create a contractually based self-regulatory regime that deals with potential conflicts between domain name usage and trademark laws on a global basis.' ^{[35 ]}On the next day, the NTIA opened a proceeding asking for public comment on DNS policy issues. ^{[36 ]}'The government has not endorsed any plan at this time,' the document stated, 'but believes that it is very important to reach consensus on these policy issues as soon as possible.' It asked for comment on the appropriate principles to use to guide the transition and on the proper organizational framework, and for suggestions on specific issues such as new TLD creation, shared vs. exclusive top-level domains, and trademark protection. By mid-August, over 430 parties had filed comments in the proceeding (Mathiason and Kuhlman 1998).

7.4.3 Fait Accompli?

The gTLD-MoU partisans had committed themselves to a position from which it was difficult to back down. They had asserted that the root was theirs to dispose of. They believed that their process had been open and legitimate, and had produced a workable consensus of the Internet community. While they were willing to tweak the most unpopular elements of the proposal, they refused to make any concessions regarding their authority, for that would mean prolonging Network Solutions' monopoly and dissipating their first-mover's power to define the agenda and control the new institutions. Thus, as the negative signals from the State Department and the Interagency Working Group came out in the middle of 1997, the IAHC leadership responded by openly challenging the U.S. government's authority. As a contemporary news article reported, 'The ad hoc committee has said it doesn't need the U.S. government's approval to go ahead with its plan. Appointed by the Internet Society, the committee says it has direct control of the computers that run the Net's addressing system through the Internet Assigned Numbers Authority (IANA). The government has ‘no choice' but to go along with its plans, IAHC chair and ISOC president Don Heath has said.' ^{[37 ]}

Indeed, the IAHC members began to execute their plan as if their authority to do so were still unquestioned, in the hope that they would win by default. An interim Policy Oversight Committee was constituted in August 1997 and began to accept money from registrar applicants.

Eventually, 88 companies paid in, creating a fund of nearly US$1 million. Software development contracts for the shared registry system were initiated, and an implementation schedule was released. January 1998 was set as the starting date for new registrations.

But the IAHC's authority to get their new names into the root was still in doubt. Postel's IANA could plausibly claim policy authority over the root, but Network Solutions actually operated the authoritative A root server, so nothing could be done without its acquiescence. And as a byproduct of the Name.Space litigation, Network Solutions had explicit instructions from the National Science Foundation not to add any new top-level domains to the root. A confrontation was looming. As an IAHC member, David Crocker, noted in the fall of 1997: 'We are fast approaching a critical moment. . . . The moment is the request by IANA for addition of the new generic TLDs (gTLDs) to the root DNS servers. The request will be issued when the gTLD-MoU's CORE project plans require it for testing, prior to live registration operation of these gTLDs. Nearly 90 companies have committed significant funds and effort to this activity, so it's rather more than a theoretical exercise.' ^{[38 ]}

The U.S. government's intention to make policy through Magaziner's working group and the NTIA proceeding represented a clear threat to these plans. To counter what it viewed as unwarranted intervention by the U.S. government, the IAHC began to seek political support from foreign governments. Thirty-five of the registrars authorized by the interim POC were European companies, and several others were Asian, giving non-U.S. interests a stake in the proposed regime. In a November 13, 1997, email from Crocker to a private CORE email list, acquired and leaked by reporter Gordon Cook, the strategy was stated explicitly: 'It appears that the folks at the U.S. government continue to miss the point that the rest of the world and its governments think that the Internet is a global resource, rather than strictly being an entity belonging to the U.S. Other governments need to communicate their interests in this effort to open up control of Internet infrastructure. It would be very helpful for contingents from non-U.S. countries to band together and lobby their own governments to communicate to the U.S. folks.' ^{[39 ]}

The situation became even more polarized when U.S. congressional hearings were held on September 30 and October 2, 1997. The hearings were dominated by gTLD-MoU opponents, some of whom played on nationalistic sentiments. ^{[40 ]}

^{[23 ]}Interview with Brian Kahin, May 17, 2000.

^{[24 ]}'The Administration of Internet Addresses,' Office of the Inspector General, National Science Foundation, February 7, 1997. The report argued that 'the public interest requires that Internet address administration remain a governmental activity' and that the government should impose fees on domain name and IP address registrations and use the money to supplement the government's investment in the Internet.

^{[25 ]}W. Bordogna, NSF, memo in response to OIG report, April 17, 1997.

^{[26 ]}Ibid.

^{[27 ]}'US Federal Gov't Decides to Solve DNS Problem-Rug Pulled out from under NSF,' Cook Report, March 28, 1997.

^{[28 ]}Karl Auerbach statement in Freed collection.

^{[29 ]}David Conrad, interview with author, August 23, 2000. Conrad, as head of APNIC at the time, committed US$50,000 to IANA support and reported that RIPE-NCC had committed US$25,000.

^{[30 ]}Magaziner had also been in charge of the Clinton administration's abortive health care reform initiative. That initiative had received a brutal response in part because it attempted to socialize a larger part of the U.S. health care system. More than one internal observer of Magaziner's role in the creation of ICANN felt that he was motivated in part by a need to redeem himself for the health care fiasco. Magaziner went to extraordinary lengths to actively consult with as many actors in the private sector as possible.

^{[31 ]}Gordon Cook, transcript of interview with Ira Magaziner, September 24, 1998.

^{[32 ]}The original co-chair was Bruce McConnell of the Office of Management and Budget, but he became an inactive member and was replaced by Burr in July 1997.

^{[33 ]}State Dept cable; on file with author.

^{[34 ]}Interview with Brian Kahin, May 17, 2000.

^{[35 ]}Presidential Directive on Electronic Commerce, memorandum for the heads of executive departments and agencies, July 1, 1997.

^{[36 ]}Request for Comments in the Matter of Registration and Administration of Internet Domain Names, U.S. Dept of Commerce, Doc. No. 970613137-7137-01, July 1, 1997.

^{[37 ]}'US Rejects Net Name Plan,' May 2, 1997, <http://yahoo.cnet.com/news/0-1005-200-318681.html>.

^{[38 ]}Email to gtld-discuss mailing list, October 1997.

^{[39 ]}Email, Gordon Cook to com-priv list, November 14, 1997; on file with author.

^{[40 ]}U.S. Congress, House Science Committee, Subcommittee on Basic Research, Hearing on Internet Domain Names, September 30, 1997, <http://www.house.gov/science/pickering_9-30.html >.

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