8.1 From Green Paper to White Paper

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The release of the Green Paper quickly polarized the governance debate around the issue of the U.S. government's role. ^{[1 ]}Under the Green Paper, domain name system (DNS) privatization would have taken place in a U.S. legal and institutional framework, possibly as rule-making subject to the U.S. Administrative Procedures Act. ^{[2 ]}Most participants in the United States welcomed the procedural solidity that the U.S. Commerce Department proceeding brought to what had been a chaotic process, even if they wanted to modify specific aspects of the policy. ^{[3 ]}

The groups that opposed the Green Paper, on the other hand, reviled it as U.S. coup d'Ètat that took no heed of the international character of the Internet. Opponents saw it as a form of intrusive government intervention in the affairs of what had been a self-governing community. These included, of course, the U.S.-based Internet Society and other members of the Generic Top-Level Domain Memorandum of Understanding ( gTLDMoU) coalition, which rejected the authority of the U.S. government. Indeed, the Green Paper ended up firmly uniting the European Commission (EC) and policymakers in the few involved national governments with supporters of the gTLD-MoU, despite their earlier rejection of the initiative as 'too U.S.-centric.' ^{[4 ]}

8.1.1 Fighting the Green Paper

The gTLD-MoU had been formed around an international network composed of members of the technical community, prospective registrars, and intergovernmental organizations. That network was now leveraged to arouse significant opposition to the U.S. government's proposal. The Council of Registrars (CORE) utilized the US$1 million in registrar application fees it had collected to hire a public relations firm and a lobbyist. ^{[5 ]}The Internet Society and CORE organized a campaign to file comments in the National Telecommunications and Information Administration (NTIA) proceeding, rousing their membership with emailed calls to action and setting up Web sites with ready-made messages to file in the proceeding. Ironically, given the MoU's cartel-like structure and alliances with intergovernmental organizations, the campaign relied heavily on libertarian rhetoric. The 'self-governance' and 'private sector leadership' of the gTLD-MoU were contrasted with the 'governmental meddling' proposed by Magaziner and NTIA. The plan for competing, for-profit registries was decried as monopolistic. The campaign paid off, as NTIA received a flood of ISOC- or CORE-inspired responses. ^{[6 ]}

Key CORE executive committee members and prospective registrars were located in Australia and Europe. ^{[7 ]}As representatives of business interests seeking entry to a U.S.-dominated market, their efforts aroused interest and support from their domestic governments. The CORE interests were particularly successful at turning the European Commission and the government of Australia against the Green Paper. The EC's harshly critical response to the Green Paper charged that 'The U.S. Green paper proposals appear not to recognise the need to implement an international approach. The current U.S. proposals could, in the name of the globalisation and privatisation of the Internet, consolidate permanent U.S. jurisdiction over the Internet as a whole, including dispute resolution and trademarks used on the Internet.' ^{[8 ]}

The government of Australia intervened through its National Office for the Information Economy, directed by Paul Twomey, a protÈgÈ of Senator Richard Alston. It criticized the Green Paper for its 'unduly dominant role for U.S. jurisdiction and interests,' for failing to describe how the governing body would be accountable to national interests, and for its two-year reservation of U.S. government 'policy oversight' over the root. ^{[9 ]}Whereas U.S. commentators tended to support the Green Paper's call for quick decisions on new domains, European and Asian interests urged NTIA to defer all such decisions so that a new, internationally representative organization could make them.

Opposition to the Green Paper had more to do with who would be in control of the transition than the actual policies that would be adopted. Both the Green Paper and the gTLD-MoU would have created a handful of new top-level domains, instituted shared registries, and pushed toward some form of linkage between registries and dispute resolution. ^{[10 ]}Moving forward under U.S. government auspices, however, would have weakened the influence of the gTLD-MoU framers and the international organizations that had been assigned powerful positions within its framework. The European Commission and other national governments would be reduced to the status of commentators and observers.

8.1.2 Assembling the Dominant Coalition

At some time between the January release of the Green Paper and the June release of the final policy statement, organized business lobbying groups spearheaded the formation of a dominant coalition. Political leadership came from the Internet divisions of IBM and MCI.

The key vehicle for organizing business interests was the Global Internet Project (GIP). GIP was formed in 1996 by high-level executives of 16 Internet, telecommunications, and e-commerce firms. ^{[11 ]}Its objective, which had taken shape during the controversies over encryption and content regulation in the mid-1990s, was to resist 'unnecessary international regulations and national laws that impede or inhibit [the Internet's] growth.' Ironically, one could hear from the corporate backers of a process that would lead to the institutionalization and regulation of the Internet faint echoes of the libertarian rhetoric of John Perry Barlow. The group's mission statement claimed, 'Old, outdated, national regulatory models should not be applied to the Internet. Instead, new international and nongovernmental approaches to policy must be developed, that will be flexible enough to keep pace with the rapid evolution of technology and the marketplace. Often these approaches will rely upon market mechanisms for self-regulation, rather than government regulation.' ^{[12 ]}

IBM's vice president for Internet technology, John Patrick, took over leadership of the group early in 1998. Shortly thereafter, GIP began to focus on Internet governance. While its small core of executives set strategy for the group, plans were executed by the Information Technology Association of America (ITAA), a Washington-based business lobby claiming 10,000 members in 1998. ITAA in turn was the central secretariat of a consortium of information technology industry associations from 41 nations known as the World Information Technology and Services Alliance (WITSA).

The business leaders behind GIP were, naturally enough, deeply involved in the Clinton administration's attempt to develop a global framework for electronic commerce, and encouraged Magaziner's policy of private sector leadership. At the release of the Clinton administration's e-commerce framework in July 1997, IBM president Lou Gertsner spoke on an equal status with the President and Vice President. The relationship to the White House was solidified in December 1997, when Patrick hired Mike Nelson into IBM's government affairs office and put him to work promoting GIP's agenda. Nelson, an influential member of the White House Office of Science and Technology Policy, had supervised many of the Clinton administration's National Information Infrastructure initiatives. Before that, he had drafted the High Performance Computing Act as Senator Albert Gore's staff member. At about the same time it hired Nelson, IBM recruited Brian Carpenter, the CERN scientist who chaired the Internet Architecture Board (IAB). MCI-Worldcom, which was emerging as the world's dominant Internet backbone provider, was also an active, founding member of GIP. Sometime in the middle of 1998, Vint Cerf, a vice president at MCI, began to work directly with GIP on its Internet governance initiatives. MCI had other strategic ties to the technical community as well: John Klensin, an IAB member since 1996, was an MCI employee.

Later, IBM's Internet division would play a highly visible role in the selection of ICANN's initial board. With MCI, it would later engineer fundraising and public relations support for the new organization and even come to its financial rescue at a critical time in its evolution. ^{[13 ]}In 1999, ITAA and WITSA would play a decisive role in defining a representational structure for the new Domain Name Supporting Organization that made business and trademark interests dominant. IBM's involvement in Internet governance was motivated both by its concerns about trademark dilution and more fundamentally by its strategy of developing a robust e-commerce industry over the Internet. The latter required creating a stable, predictable institutional framework for root administration. A stable administration would not rock the boat by permitting, willy-nilly, the entry of hundreds of new registries and would take strong measures to preserve brand identities.

In many respects, the coalition's core members bore a striking resemblance to the IBM, MCI, and University of Michigan consortium that had operated the National Science Foundation's Internet backbone from 1987 to 1995. In the course of developing the NSFNET backbone, IBM, MCI, a few key university network administrators, and the Internet technical hierarchy all cultivated close working relationships with federal agencies to gain access to funding. Professional linkages among the members of these organizations were maintained through organizations such as the Federal Networking Council Advisory Committee, Educom, and the Internet Society.

But the NSFNET backbone group was a domestic coalition and thus could work within an established framework of national laws, regulations, and policies. Internet governance was irretrievably international, and most key players were united in the premise that they did not want to work through established international institutions such as the International Telecommunication Union (ITU). Nor did they want the problem to be solved via new treaties or new forms of collective action among nationstates. What then did they want? Prior to the White Paper, the constituents of what would become the dominant coalition were divided or uncoordinated on that question.

The gTLD-MoU had pioneered an international alliance but lacked the unified support of two critical constituents: the U.S. government and big business. The U.S. government was uncomfortable with the prominent role of the ITU, and at odds with the Internet Assigned Numbers Authority (IANA) and the Internet Society over their attempts to privatize the root on their own initiative. Though MCI had been a strong supporter of gTLDMoU, IBM and AT&T had withheld their support because of trademark concerns. IBM executives also had been alienated by the 'arrogance' of some of the International Ad Hoc Committee (IAHC) members. ^{[14 ]}

During the development of the White Paper, Magaziner and GIP would play a key role in unifying the technical hierarchy, trademark holders, and larger telecommunication and information technology companies around a common agenda. Magaziner, who had been in close communication with Postel and other IAB members during the preparation of the Green Paper, ^{[15 ]}came to agree that the new governance organization should be a continuation of the existing IANA. ^{[16 ]}The governance entity should be incorporated in the United States, not in Europe as the gTLD-MoU had proposed, but the board should be internationally representative. There would be no new top-level domains until the concerns of trademark holders were taken care of.

The emerging political linkages among these groups were illuminated by a related development. On February 11, 1998, Jon Postel and Brian Carpenter, an IBM Internet division employee and chair of the Internet Architecture Board, jointly announced the creation of an IANA Transition Advisors Group (ITAG). ITAG was a six-member committee composed of senior members of the Internet technical hierarchy: Carpenter, Randy Bush of Verio, Inc. (an Internet service provider), David Farber of the University of Pennsylvania, Geoff Huston of Telstra (the dominant Australian telecommunication provider), John Klensin of MCI, and Steve Wolff, former director of the National Science Foundation's Computer and Information Sciences and Engineering Division, who now worked for Cisco. All were technical people long associated with IETF inner circles.

The purpose of ITAG was to advise Postel on how to handle the transition from a U.S.-government-funded set of functions to a new international nonprofit corporation with a formal board of directors. The news release claimed that the group would pay 'particular attention to its open, international governance.' The formation of the group shortly after the release of the Green Paper and Postel's root redirection debacle signaled recognition by the technical hierarchy that it had to come to terms with the ongoing U.S.-government proceeding.

Winning the support of Postel and the technical community would bring into the fold an international network of stakeholders with control of important resources. This included the regional address registries in Asia and Europe, root server operators in London, Norway, and Japan, and many operators of country code top-level domains (ccTLDs). Most ccTLD operators were affiliated with universities or government research networks that had received their delegations directly from Postel.

The U.S. government in turn served as the bridge between the U.S. corporate and technical groups and other national governments and international organizations. Almost by default, it became the accepted intermediary for resolving the institutional problem. But as it learned from the reaction to the Green Paper, it had to stay in the background rather than the foreground. Thus, it would impose some basic principles and constraints on the process and serve as a guarantor of the emerging institution's stability, but defer key policy decisions to the new entity. The U.S. government also came to defer to European pressure to allow an international organization, WIPO, to take the lead in resolving the trademark problem. ^{[17 ]}While non-U.S. parties succeeded in extracting important concessions from the U.S.-centered interests, they stood at the periphery rather than the core of the 'dominant coalition.' In the progression from gTLDMoU to the White Paper, ITU in particular lost status and influence.

Stakeholders ignored, excluded, or marginalized by the dominant coalition included Network Solutions (NSI), the alternative registries, smaller Internet service providers and their trade associations, civil society and civil liberties organizations, and the governments of developing countries. As the following discussion shows, the policy agendas of these interests were too far removed from those of the coalition to be accommodated. Network Solutions still had significant bargaining power, and its exclusion would pose severe problems for the new institution. Most of the other interests, however, having no viable claim on or control of strategic resources, lacked the bargaining strength to challenge the dominant coalition. Figure 8.1 shows the composition of the coalition.

Figure 8.1: The dominant coalition, 1998

8.1.3 The White Paper

The Clinton administration released its final plan, the so-called White Paper, on June 3, 1998 (NTIA 1998b). The White Paper surprised everyone who was not privy to the behind-the-scenes negotiations that created it. It took the form of a nonbinding 'statement of policy' rather than a rulemaking document, and it abandoned direct action by the U.S. government. No new TLDs would be authorized. No competing registries would be recognized. No binding decisions about the structure or composition of the new corporation's board would be made. Instead, the Commerce Department merely announced its intention 'to recognize, by entering into agreement with, and to seek international support for,' a new not-for-profit corporation to administer policy for the Internet name and address system. The department would simply wait for 'private sector stakeholders' to form a corporation suitable for its recognition. It asked that the private sector be ready with a 'consensus-based' proposal in time for the expiration of the Network Solutions contract on September 30, 1998. Ostensibly, it was now up to the warring factions of the Internet to settle the issues. ^{[18 ]}

Although it allowed the private sector to create what it called NewCo and define its board and structure, the White Paper did prescribe its characteristics in some detail. It should be headquartered in the United States. Its board of directors should be 'internationally representative' and balanced to equitably represent various 'stakeholders.' These were identified as IP address registries, domain name registries and registrars, the technical community, Internet service providers, and users including commercial entities, noncommercial users, and individuals. Government officials should not be allowed on the board. The White Paper contemplated the appointment of an interim board to jump-start the new corporation. In general, the corporation should be governed on the basis of open and transparent decision-making processes.

The White Paper also described in some detail the policies it thought NewCo should adopt. The Commerce Department pledged that it would revise its agreements with Network Solutions to 'take actions to promote competition,' which meant opening up the generic top-level domains to competing registrars. The globally dominant registry would also be required to 'recognize the role of the new corporation to establish and implement DNS policy.' Regarding domain name disputes and trademark protection, the statement abandoned the Green Paper's registry-centered approach and came out in support of a uniform dispute resolution policy. Moreover, it deferred to WIPO, asking it to initiate a global consultative process to develop recommendations for a uniform dispute resolution system and policies to protect famous trademarks in new top-level domains. It also called for an independent study to evaluate the effects of new top-level domains on trademark holders. The work of the IAHC was explicitly recognized.

To those who drafted it, the policy statement outlined a bargain capable of satisfying a coalition of some of the most powerful claimants: the U.S. government; IANA, the Internet Society, and the IAB; the major industry players orchestrated by GIP; the trademark interests; and the European Commission and other involved national governments. Behind the scenes, these groups had made a tenuous peace. The new organization would be 'built around the existing IANA.' ^{[19 ]}This won the enthusiastic support of the Internet Society and the gTLD-MoU parties, ^{[20 ]}and the GIP members, who had strong ties to, or directly employed, many of the leading technical people. Business interests also favored the concept of private sector leadership and a reduced role for government action. And, like the other trademark interests, they were relieved about the delay in new top-level domains and the promise of a dispute resolution system designed by WIPO. The European Commission, which had been given advance drafts of the document, approved of the fact that the U.S. government was leaving specific policy decisions to a new organization that would be internationally representative. ^{[21 ]}Foreign governments were also happy that Network Solutions' gTLDs would be opened to CORE registrars and that an international organization, WIPO, had been given an important role in resolving the trademark problem.

^{[1 ]}Comments on the Green Paper are still posted at <http://www.ntia.doc.gov/ntiahome/domainname/130dftmail/>.

^{[2 ]}For a detailed legal discussion of the implications of the Administrative Procedures Act and its avoidance in the creation of ICANN, see Froomkin (2000). Ultimately the Commerce Department chose a mode of action designed to avoid the APA, but at the Green Paper stage, there was still the possibility that the privatization process would occur under the Act. See the comments of J. Beckwith Burr, Transcript of a Public Hearing with Ira Magaziner, White House Advisor, and Beckwith Burr, Associate Administrator, NTIA, Department of Commerce, Washington, D.C., February 23, 1998, <http://www.ntia.doc.gov/ntiahome/domainname/130dftmail/feb23transcript.htm>.

^{[3 ]}Network Solutions and the alternative registries supported the general thrust of the proposal. IBM praised the Green Paper as 'basically sound and workable.' Educom commented that 'the Green Paper provides a robust blueprint for addressing many current problems with management of Domain Names, and is strongly endorsed by the higher education networking community.'

^{[4 ]}The Australian government's comments, for example, criticize the Green Paper for not mentioning the gTLD-MoU, even though they 'do not necessarily support it.' The Australian government's policy critique of the Green Paper followed the same lines as the MoUvement's, insisting that registries should be administered as a monopoly, nonprofit 'public trust' instead of by for-profit enterprises, and rejecting the nonuniform dispute resolution approach of the NTIA proposal.

^{[5 ]}Interview with Don Heath, June 19, 2000.

^{[6 ]}Of the 50-odd emailed comments filed on March 21 and 22, the second and third days before the deadline, nearly three-fourths came from individual ISOC members or CORE participants; 17 of the responses were identical. See note 1.

^{[7 ]}The CORE executive committee at this time consisted of Werner Staub (Switzerland), Siegfried Langenbach (Germany), Ivan Pope (U.K.), Leni Mayo (Australia), and Trevor Hayes (Australia).

^{[8 ]}Council of the European Union, European Commission: 'Internet Governance: Reply of the European Commission and Its Member States to the U.S. Green Paper,' March 16, 1998.

^{[9 ]}Response of the Commonwealth Government of Australia to the Proposed Rule of the United States Department of Commerce, <http://www.ntia.doc.gov/ntiahome/domainname/130dftmail/Australia.htm>.

^{[10 ]}The issue of for-profit registries and the uniformity of the dispute resolution procedure were both points of substantive policy difference between the two proposals.

^{[11 ]}Its founding members were Netscape (acquired by AOL by 1999), MCI, IBM, AT&T, Deutsche Telekom, Oracle, Visa International, NEC, Fujitsu, Sun Microsystems, BBN Planet, and EDS.

^{[12 ]}From the GIP Web site, <http://www.gip.org/>. Compare this to Barlow's 'Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. . . . Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours.'

^{[13 ]}In June 1999, when ICANN was desperate for funds, Vint Cerf and Mike Nelson mounted an appeal to the Internet industry for US$1 million in 'bridge funding.' According to Cerf, 'I would then launch a campaign with GIP, ITAA, Internet Society, and other interested groups on the basis that ICANN must succeed or Internet will be in jeopardy.' Despite fund-raising appeals to Silicon Valley, only MCI WorldCom and Cisco were willing to provide loans for US$500,000 and US$150,000, respectively. Email, Gordon Cook to Telecom Digest email list, September 1, 1999; on file with author.

^{[14 ]}Interview with Roger Cochetti, June 2, 2001. A group of major IBM executives had been treated to a presentation by the IAHC members at a very early stage, either late December 1996 or early January 1997. They came out of the meeting, according to Cochetti, unimpressed with the claims of the IAHC that they already controlled the root and convinced that the brash IAHC members failed to comprehend the need to cultivate the needed political support.

^{[15 ]}Interview with Scott Bradner, July 19, 2000.

^{[16 ]}The IAB had not, however, completely abandoned the gTLD-MoU. Its meeting minutes reveal that it continued to nominate representatives to the MoU's Policy Oversight Committee as late as June 1998. IAB Minutes for June 9, 1998.

^{[17 ]}A source at WIPO who wishes to remain anonymous thinks that Magaziner really did believe that technical coordination concerns were paramount and that trademark issues were a distraction. After agreeing (thanks to European pressure) to permit WIPO to perform its role, he expected to bury or sidestep the issue in that way.

^{[18 ]}A revealing public statement by Magaziner shortly after the release of the Green Paper provides insight into the motivation behind the U.S. Government's approach to the White Paper: 'The easiest thing for us would be if we could punt on this. That is, if we could say, ‘We're lame ducks. We're getting out of this. Let's wait for this new organization, and we're not going to change anything until that comes into being.' And that would certainly make our job easier. [But we are convinced] that it would delay the onset of competition. And so that's why [in the Green Paper] we went against our better visceral judgment about what was in our own best interests, and said, we'll go ahead and try to create this transition. . . . But if there was an overwhelming set of opinions from the broad community that said, ‘No, just wait,' then I'm sure we would be amenable to listening to that.' Transcript of a Public Hearing with Ira Magaziner, White House Advisor, and Beckwith Burr, Associate Administrator NTIA, Department of Commerce, Washington, D.C., February 23, 1998.

^{[19 ]}Internet Architecture Board minutes, June 9, 1998.

^{[20 ]}Don Heath told the press that 'the final policy represents a victory for the Internet Society-influenced Generic Top-Level Domain Memorandum of Understanding (MoU). ‘It's excellent,' he said, that government had decided to leave Internet governance to users and the private sector instead of governments.' Will Rodger, 'Government Hands Domain Name Reins to Private Sector,' ZDNet News, June 5, 1998.

^{[21 ]}A European Commission Council meeting dated May 19-several weeks before the publication of the White Paper-noted, 'The U.S. authorities are now in the process of drafting a White Paper which, according to Commissioner Bangemann, seems to take into account many of the concerns expressed in [ Commission's response to the Green Paper].' Minutes of European Commission 2096th Council Meeting, Brussels, May 19, 1998, 8529/98 (Presse 149).

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