9.7 Country Codes and National Governments | Ruling the Root: Internet Governance and the Taming of Cyberspace

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Governments also used ICANN to impose boundaries upon and assert rights in the Internet's name space. Using ICANN's Governmental Advisory Committee (GAC) as a platform, they attempted to project their jurisdictional authority onto what once had been an open, common pool resource. Just as the physical world was divided up into mutually exclusive territories controlled by sovereign governments, so could the name space be. Country codes were the most direct and obvious point of entry for this kind of thinking. If national governments could gain control over the assignment of their own country code, they could translate their geographic jurisdictions into cyberspace and gain a significant role for themselves in Internet governance.

Nominally, ICANN was a private corporation. The White Paper had stated that 'neither national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses.' The founding documents explicitly prevented government officials from sitting on the board. In order to assuage the demands of the European Commission and other intergovernmental organizations, however, the White Paper did leave room for governments to participate in a 'non-voting, advisory capacity.' ^{[32 ]}That concession led to the recognition by ICANN of the GAC as a permanent part of its structure. The GAC was constituted March 2, 1999, with Australia's Paul Twomey as its chair. ^{[33 ]}

The Americans who dominated ICANN's management and interim board initially viewed GAC as a prophylactic that did as much to keep governments out of ICANN's affairs as it did to bring them in. The GAC, however, quickly became an important player in ICANN's policymaking processes, functioning as a fourth Supporting Organization (SO) in all respects except for the election of board members.

At its first meeting, the GAC declared the Internet name space a 'publicresource.' From then on, its leading participants mounted a persistent campaign to redefine the legal delegation procedure and practical relationship between ICANN, governments, and country code top-level domain (ccTLD) administrators. The changes were designed to give national governments direct control over ccTLD delegation and redelegation decisions. The GAC also fought to make name space references to countries exclusive and grounded in the existing political order. It demanded, for example, that ICANN abstain from assigning any top-level domain names that referred to countries, regions, languages, or peoples without the approval of the relevant government or public authority. This would rule out, for example, top-level domains for internal nationalities such as .tibet, .wales, and .kashmir, or for regions such as .asia. Australia, France, and the U.K. in particular were concerned about gaining direct control over the administration of the top-level domains of their external or dependent territories. Under the ISO-3166 coding standard, many small islands and territories had their own country code, and in Jon Postel's informal delegation regime many of them had been assigned to people or organizations over which the governments had no control.

A series of communiquÈs issued throughout 1999 affirmed the GAC's concerns about gaining control of country code delegations. ^{[34 ]}In February 2000, GAC released a detailed document describing what it hoped would become the model for institutionalizing the relationship between ICANN, ccTLD delegations, and the relevant national governments or public authorities (GAC 2000). The old system of bilateral delegations should be replaced, GAC proposed, with a three-way 'communication-based regime' that placed governments at the apex of the triangle. Governments, as representatives of the public interest, would designate which organization would receive the delegation of a country code, and could demand redelegation if in its opinion an existing holder lacked public support or failed to serve the public interest. ICANN would be limited to a subordinate technical and administrative role, ensuring that the ccTLD registry maintained the proper DNS functions. The delegatee was seen as a public trustee, dependent on its own government for the delegation and with no right to subcontract, sublicense, or otherwise trade the ccTLD delegation, and no intellectual property rights in the TLD string or the registry data.

The proposed GAC principles constituted a major step toward incorporating top-level domain delegations into a traditional, nation-state based framework. Neither ICANN nor the incumbent ccTLD operators, however, were eager to embrace it. Country code managers saw the 'local Internet community' as the source of their authority, and while the concept of the local Internet community included local governments, it was not limited to or dominated by them. ^{[35 ]}ICANN initially resisted what it saw as governmental encroachment on management of the name space, fearing that ccTLD delegations could become political footballs that changed hands with every change in a state's politics.

The issue was particularly sensitive because the relationship between ccTLD registries and ICANN was still a point of friction in the emerging regime. By virtue of inheriting from the U.S. government the Network Solutions Cooperative Agreement, ICANN had clear authority over the management and policy of generic top-level domains. But its authority over country code managers was ambiguous. ICANN considered them to be one of seven DNSO constituencies and as such a fully incorporated part of its new regime. The country code managers, on the other hand, viewed themselves as outside the regime until and unless acceptable contractual agreements specifying each other's mutual obligations and responsibilities were negotiated. ICANN refused to enter negotiations, insisting that it was a policy formation organization, not a service provider. The clash in perception came to a head in 1999, when ICANN's Task Force on Funding proposed to impose on the ccTLDs an obligation to provide 35 percent of the ICANN budget. ^{[36 ]}The country code constituency refused to pay the full amount, offering instead a smaller sum representing what it called 'interim donations' pending contractual negotiations with ICANN defining the services that would be provided.

At present, the relationship between ICANN, ccTLD managers, and national governments is not settled. The country code managers have prepared a draft contractual agreement between ICANN and ccTLD managers. The GAC continues to pursue its model of governmental control over country code delegations and has succeeded in pushing ICANN one step along that path. At the Yokohama meeting in July 2000, GAC asked ICANN 'to write to the relevant governments and public authorities' to find out whether they were satisfied with the current delegations for the ccTLDs corresponding to their jurisdictions. ICANN staff prepared a draft letter, and solicited comment about its content and about whether to send it out. The GAC communiquÈ also took sides in the funding controversy, supporting ICANN's funding request from ccTLD operators. At some point it seems likely that a GAC-ICANN coalition will succeed in bringing the ccTLD operators into the regime.

^{[32 ]}U.S. Congress, House of Representatives, Committee on Energy and Commerce, Subcommittee on Telecommunications, W. J. Tauzin, Chairman, February 8, 2001, Hearings on 'Is ICANN's New Generation of Internet Domain Name Selection Process Thwarting Competition?'

^{[33 ]}Australian Senator Alston, in the final comment period on the ICANN proposal, expressed concerns about 'the authority of national governments to manage or establish policy for their own ccTLDs.' Letter, Senator Richard Alston to William Daley, Secretary of Commerce, October 8, 1998. In her October 20 letter to the interim board designees, Commerce Department official J. Beckwith Burr asked ICANN to provide assurances about their intentions regarding ccTLD management. ICANN's response confirmed that governments would have such authority but cautioned that the 'details of implementation . . . may be complex' and implied that it would look to guidance from the GAC on that question. Dyson to Burr, November 6, 1998.

^{[34 ]}Leadership of the GAC came primarily from representatives of governments and intergovernmental organizations activated either by the gTLD-MoU or by the Green Paper: Paul Twomey of Australia, Robert Shaw of the ITU, Christopher Wilkinson of the EC, and Francis Gurry of WIPO. The initial list of names inviting governments to send representatives to meetings was drawn from the ITU.

^{[35 ]}At the Berlin meeting of ICANN in May 1999, the GAC communiquÈ asked ICANN to reassign 'with the utmost promptness' ccTLD delegations of ' external and dependent territories' upon request of the 'relevant public authority or government.' GAC communiquÈ, May 25, 1999. 'The GAC also reaffirmed that the delegation of a ccTLD Registry is subject to the ultimate authority of the relevant public authority or government,' GAC communiquÈ, August 24, 1999.

^{[36 ]}Interview with Dennis Jennings, June 28, 2000, 'Best Practice Guidelines for ccTLD Managers,' ccTLD Constituency of the DNSO, June 12, 2000, section 3.1.

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