Ruling the root presentation

Ruling the Root

May, 1 2013

Vanessa Beaton, Lisa Danay, Nir Levin,

Ilana Neck

Presentation Outline

Introduction to the Root

Connections to Global Technology Course Themes

Part I

Part II

Part III

Jeopardy

Acronyms

ARPA: Advanced Project Research Administration

gTLD-MoU: generic Top Level Domain - Memorandum of Understanding

IETF: Internet Engineering Task Force

IAB: Internet Activities Board

IAHC: International Ad Hoc Committee

IANA: Internet Assigned Numbers Authority

ISOC: Internet Society

NS: Network Solutions

NSF: National Science Foundation

NTIA: National Telecommunications Information Association

ICANN: Internet Corporation for Assigned Names and Numbers

WIPO: World Intellectual Property Organization

CORE: Council of Registrars.

Introduction

How do we understand and what are the controversies related to the naming and addressing of computers on the internet?

Policy

Governance

Privacy

Introduction Cont’

Part I: The Root as Resource

Name and Address Protocals

A set of technical functions

Top level domain names (TLD’s) must insure that IP addresses are unique to each device communicating on the internet

Why is this Function Important?

Cannot have a duplicity of IP addresses or domain names

Facilitates a discussion of who should have what degree of control

Before the “White Paper”

Before 1998: Root server was controlled by a government contracted company called Network Solutions Inc,

Name and addressing protocols was under contract to US Military and National Science Foundation

The “White Paper”

In 1998, in response to these growing concerns the US government released policy document

Interesting choice was made control over policy belongs to private stakeholders

Internet posed new organizational concerns

The internet posed a new set of needs

Distinction was drawn between an “industrial society” and an “information society” that the internet was creating

For and Against this Approach

The suggestion was that the internet was fundamentally different

FOR: The internet needs a different organizational structure that the bureaucratic approach could not accommodate

AGAINST: That this is the creation of a hugely important jurisdiction and its being completed outside of the scope of the constitution.

Reston Virginia 1998

Pivotal start to creation of internet governance policy

Informal: no credentials required

Not the end result – but seen as a constitutional moment, creation of a social contract involving many different types of stakeholders

“Governance”

There is fundamental issue created between the intersection of technical management and regulatory control

Two conflicting definitions of governance

Narrow Interpretation

Technical interpretation involving only a system to organize managing root functions

Broad Interpretation

Broader scope of control including

Surveillance: root as a single point of surveillance,

Public Policy: inappropriate implementation of public policy

Leverage for personal gain: Including setting prohibitively high fees or exchanging the creation of certain top level domains in for international underhanded deals

Content Regulation: Controlling what content goes where

Example: Content Regulation:

Notions of Free Speech

For example the .xxx or .kids domain names

Global power to decide what is xxx or kid friendly

ICANN on Governance

ICANN attempted to distance themselves from the broad definition of governance – rather articulating is as technical management

ICANN governs “the plumbing not the people”

Reality

The TWO are inextricably linked – the requirement of centralization of control does create potential for the intrusion of politics and policy control

Unique Values

The primary issue is the naming and address protocols

This requires the assignment of unique names and number

CoordinationCoordinating this involves 2 Steps

Defining the space

Space representing a range of values determined as the basis for identifiers

Important because –uniformity allows computers to process addresses

Assignment of unique values

This process has three important layers

1. Techincal

2. Economic

3. Policy

3 LayersTechnical

There is the technical requirement that they be singular and not duplicative

Economic

Addresses are a finite resource – needs to allocate appropriately to insure the resource isn’t wasted

Supply and demand

Policy

If IP addresses are semantically meaningful, a process needs to be defined to resolve competing claims over the resource

Example: For example France

The Root and Institutional

Change – Analytic Framework Internet names and numbers are resources

Internet governance is the institutionalization of those resource spaces

Creation of a property right

Formation of a Property Right

New resource is created or discovered and conflicts arise among individuals attempting to appropriate the value

Affected community must establish rules governing the economic exploitation of the resource

Process Divided into 3 parts

Endowment – development of new demand conditions that lend substantial value to a resource

Appropriation – refers to attempts by private actors to exploit the resource or establish claims to parts of it

Institutionalization - working out a set of rules or rights definitions that resolve the conflicts and provide a settled (if not fair or efficient) basis for exploitation of the resource.

Endowment

Technological development

Commercialization of technology creates resources internal to the system

“unnatural resources”

Need to be shared

Endowment and the Internet

Development of the internet did create a new resource with substantial value

Root server – acquired commercial value as global locater of servers

Root had property control: Could create new TLDs and to decide who controls the registries

Appropriation

Competition for access will intensify

Institutionalization becomes important: Especially when the resource space created requires sharing or coordination to be used effectively

Institutionalization (Institutional Change)

the development of the internet throughout these stages created a need for institutional change

New technological system did not readily fit into existing resource models

Common Pool Resources

common pool resources :

Unowned, these resources are open to appropriation by anyone

Under these conditions, in the best interest of entities to consume as much as possible, because what they do not consume, other will

this leads to exhaustion of resources and repetitive investment

Institutionalization Causes

Network Solutions precipitated the internet becoming a common pool resource.

Charged small and often unenforced fees

Too costly to discriminate among the thousands of applicants for names

First come first serve leads to the deterioration of the pool resource

Internet and Institutional Change

International institutions often undergo change by comprehensive collective action by nation states

Internet name and address spaces took a different pattern for change

A new private organization was created that would bring together various stakeholder to formulate “consensus policies.

Part II: The Story of the Root

The history reveals: certain institutions and people played a fundamental role in the initial design; there were many different stakeholders and growth, economics and politics have all played a role.

Questions

Who was given authority of root in the first place?

Who owns the Internet and has the right to decide how many and what domain names will exist in the root?

Who has the authority to adjudicate conflicts at the second level over names that competing parties wish to own?

What are implications of authority?

A Timeline in Brief1973:

DARPA1975- 77:

TCPs

1977-81: Forming IPs

1980s: Expansion

1989: Coordination

1988: IANA

1981-91 US Military

1991: Commercial

Traffic

1990-95: www.

1995: Charging for

registrations1995-97: Court PR Conflicts

1994-96: 3 parties

claimed root

1997: gTLD-MoU 1998:

Green Paper

Commercial Influence

Chapter 5: Growing the Root, establishing a ‘Ménage et trois’

What does history tell us about governance and policy?

The internet is global in scope the institutionalization was not organized through nation-states, but it exists within our international system and politicians have had a large role over the years.

The role of one man: Postel

Informal collaboration between:

Internet technical community

Civilian, Federal and government Agencies

US Defence Department

Chapter 5: Growing the RootCont’

1993: Private Sector Governance 1993: US Government View

Chapter 6: Appropriating the

Root: Property Rights ConflictsWho really has authority and legitimacy?

Property rights in early context of a common pool resource

When there is no one with legitimate authority how are conflicts dealt with?

There were cracks with growth and 2 catalysts to conflicts:

Trademark protection and second level domain name registration

Top level domain name assignments

To be at the top of DNS hierarchy, needed to control the root

Chapter 7: The Root in Play,

Domain Name Wars and Authority

The institutional crisis: the symptoms of the crisis were a result of no clear policy authority

Struggles, intervention and control culminating in the Green Paper, which we will touch on more later

A battle of semantics:

A public resource subject to the public trust OR a vehicle for possession OR vying for international recognition?

In Sum

Internet growth created resource

Domain name space as common pool resource

3 barriers to resolving property rights conflicts

No established, formal organization with authority

Attempts to defines property rights in domain names caused conflicts over distribution of wealth

Contracting proved to be difficult because of heterogeneity of groups involved.

Chapters 8-10

Chapter 8: Continuation of the historical narrative of the Root– the creation of ICANN

Chapter 9: The Main Issues that the New Regime dealt with in his first two years

Chapter 10: (Issues and Themes) Beginning of the Theoretical section of the book – ICANN as Global Regulatory Regime and Policy's questions

In the context of our class: the main focus of this section is Internet Governance , (connection between Internet Governance and IP )

Policy issues: we will see that the debates and disputes between the different parties involved difficult policy questions.

Chapter 8 : Institutionalizing the

Root :The Formation of ICANNInstitutionalizing - parties involved in the exploitation of a resource adopt group rules and customs regarding its allocation and use

rocky road to effective coalition:

1. The traditional notion - common will to internet community.

2. the 1990's notion - new heterogeneous interests (Internet Technical Community; Research & Education networking Organizations; Trademark & IP Interests; Large Telecommunications; Local & Regional Internet Service Providers… etc _)

From Green Paper to White Paper

US Oriented : Under the Green paper - DNS privatization would have taken place in a US legal and institutional framework.

The groups that opposed the green paper: the US took no heed of the international character of the Internet.

Furthermore: they saw it as an intrusive government intervention in the affairs of what had been a self-governing community and rejects the authority of the U.S. government.

Fighting the Green Paper – Main

Groups

include prospective registrars that were located in Australia and Europe.

an international network composed of members of the technical community, prospective registrars, and intergovernmental organizations.

Fighting the Green Paper – Main

GroupsThe EC’s:

“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.""

Assembling the 'Dominant

Coalition'organized business lobbying groups spearheaded the formation of a dominant coalition.

The key vehicle for organizing business interests was the Global Internet Project (GIP).

The groups mission : to avoid national old regulatory on the internet and to apply new international and non-governmental approaches "that will be flexible enough to keep pace with the rapid evolution of technology and the marketplace"

Key rolls in GIP – IBM executives (includes some with strong connections to Clinton administration)

Behind the scenes: negotiations between the different groups (include US government).

The White paper - Moving Towards Private

Internet Governance (June 1998)

The Clinton administration releases his final plan:

1. No new TLDs would be authorized.

2. No competing registries would be recognized.

3. No binding decisions about the structure or composition of the new corporation's board would be made.

The White paper - Moving Towards Private

Internet Governance (June 1998)

Instead:

1. The commerce department announced its intention "to recognize, by entering into agreement with and to seek international support for.." new not-for-profit corporation to administer policy for the Internet name and address system.

2. The department would simply wait for "private sector stakeholders" to form a corporation suitable for its recognition.

3. The new corporation should have these characteristics: it's should be headquartered in the United States. Its board of directors should he "internationally representative" and balanced to equitably represent various stakeholders.

4. Government officials should not be allowed on the board!

The White paper - Policy issues

The white paper calling to the new corporation to revise its agreements with Network Solutions (Registry) to "take actions to promote competition," - opening up the generic top-level domains to competing registrars. (controlled .com, .net)

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 White paper led to optimistic spirit - almost all of the main parties were satisfied (EC, gTLD-MoU, GIP)

The International Forum on the White

Paper (IFWP).

Incorporation workshop's that took place all over the world that includes almost all of the major parties involves.

IANA refuses to participate in the international forum, suggesting their own draft - public benefit corporation (structure typically used for educational and charitable organizations.)

The International Forum comes with alternative proposal : nonprofit, membership organization managed and controlled by an elected board representing various interest groups.

The perception: the participants in the new organization would serve not because they were altruistic, but in order to advance their business, professional, or personal interests;

The Creation of ICANN

2 different process that are taking place at same time – and then…

Pro - IANA members of the steering committee withdrew their support for IFWP in order to allow IANA to take charge of the incorporation process.

The International Forum breaks down - IANA became the undisputed focal point of the process.

After meetings between IANA and Network Solutions (Registry top level domain contractor) they released draft for Internet Corporation for Assigned Names and Numbers (ICANN).

The White Paper Failure

The White Paper fail to facilitate open, private sector collective action!

Key bargaining parties had not even come to agreement on a common negotiating arena (IFWP vs. IANA).

the The Internet's "constitutional convention" had been reduced to two and not in an open process government contractors

- the board members of ICANN were eleceted by IANA's people

End of story..

5 different proposals to US Commerce Department .

The Commerce Department choose the ICANN (former IANA) proposal but acknowledge the main critics of ICANN: Especially the composition of the interim board and its method of selection (no transperncy)

The Commerce Department officially recognized ICANN as the White Paper's private sector, not-for-profit entity on February 26, 1999.

Chapter 9: The New Regime

First two years: working with the U.S Department of Commerce to transform administration of the DNS root into the platform for contract-based governance of the Internet.

The new regime defined and distributed property rights in the domain name space and imposed economic regulation on the domain name industry.

The property system of ICANN - highly regulated and conservative one, analogous in many respects to broadcast licensing in the United States

The New Regime : The main

issues1. Dealing with Network Solutions' registry monopoly: transforming.com, .net, and org into shared domains , though Network Solutions succeeded in retaining a long-term property right over the .com registry.

How it goes? They created shared registration system (SRS) that would allow multiple, competing registrars to sell names in .com, .net, and .org on a retail basis.

ICANN issued a set of regulations that would be used to accredit any company that wanted to register domain names in the Network Solutions top-level domains.

ICANN accredited five registrars to participate in the "testbed" phase of the shared registry.

Who ?Dominant coalition members who contributed start – up money to ICANN


issuesThe results:

1. Domain name Prices went down (It decreased the price of many .com registrations)

2. ICANN got control of over than 70 % of the Domain name market, and, as a result- use it as a funding source to sustain its own activities.


issues2. Trademarks & IP: trademark protection became one of the major determinants of the contractual features of registering a domain name, of policies regarding access to information about domain name registrants, and of policies governing the creation of new top-level domains.

To ICANN and the Commerce Department, protecting trademark holders was the second-highest priority after introducing competition in the .com space.

ICANN's most significant accomplishment : ICANN implemented trademark dispute resolution regime. - Uniform Dispute Resolution Policy (UDRP) which every registrar of domain names bound to as a condition of accreditation. (The UDRP procedure allows any person, anywhere in the world, who believes that a domain name registration infringes his trademark right, to challenge a registration.) The UDRP is arguably.


issuesInternational : National governments and intergovernmental organizations used a limited role within ICANN's structure to assert rights over the delegation and assignment of country codes, names of geographic and urban places, and names for international organizations.

The DNS Root: The U.S. government retained residual authority over the DNS root. Instead of giving up that authority after two years, as originally contemplated, the government has held on to it indefinitely. (property issues)

New Top Level Domains (2000): .biz , .info , .pro , .name , .museum .

Rejection of TLD devoted to sex (.sex, .xxx) and children (.kids)

Chapter 10 :ICANN as Global

Regulatory Regime What Is ICANN ?

Is it Is it a standards organization? regulator? policymaker? private or governmental?

Mueller's definition:

"international regime…., established by states to handle governance or regulatory problems that span national boundaries".

Chapter 10 : Theoretical

Justification - FederalismThe fundamental problem of Internet law and governance: the democratic nation-state based on the control of physical territory, while cyberspace an arena for human interaction in which location doesn't matter much.

A single global government is an unattractive solution to this problem – so, according to the legal scholars David Johnson and David Post - The solution is concept of federalism.

Federalism structure breaks down the collective action problem into smaller units but maintains some coordination among the parts.

Chapter 10 : Theoretical

Justification - FederalismWhat should be the collective unit?

According to Johnson & Post - decision-making authority over parts of the online world should be allocated to people who are "most affected" by the decisions.

Ideally, the root administrator should implement only those policies that reflect the broadest consensus among affected stakeholders.

rejection of democratic methods of governance (no sovereignty)

Critique of the Theory

Federalism does not describe how ICANN actually operates: the political bargains that created ICANN were struck by parties unsympathetic (to say the least)

ICANN has monopoly control of an essential resource-the root.

Control of the DNS root gives it substantial power over all top-level domain name registries, and through them it can control the domain name industry as a whole.

So what is ICANN?

Mueller suggests that ICANN is a new international regime formed around a global shared resource.

ICANN is not primarily concerned with technical coordination or standards-setting organization – it connects the need for technical coordination to regulation of the industry built around the resources it manages.

The Main Policy areas

Rights to Names:

ICANN defines and enforces property rights in names :

1. Recognition and protection of various kinds of intellectual property claims

2. resolution of disputes based on these claims (via UDRP)

Regulation of Domain Name Supply Industry

Forces Affecting ICANN's Future:

(the most interesting)

Multilingual domain names are extremely popular with the large majority of the world's Internet users who are not native English readers (as we talked yesterday).

But – it will require major changes in the DNS protocol.

IPV6 – what if it won't get acceptance?

Part III: Issues and Themes

Chapter 11: Global Rights to

Names

a Website by any Other Name…

During the explosion of domain name registrations under .com,

many business people and intellectual property lawyers became

convinced that domain names possessed a remarkable power to

attract users and establish a global identity in cyberspace. This in

return, provoked an effort to make domain names a 'controlled

vocabulary'.

Expanding Trademark Rights

Throughout the domain name controversies (WIPO & ICANN…), almost

all sides of the dispute have agreed upon the principle that new laws or

policies should neither expand nor diminish traditional intellectual

property rights.

Though, it quickly became as fiction…

Mechanized Rights

In the domain name space, rights are established and

defended not through ex-post facto litigation that applies a

legal standard to a particular situation, but by preemptive

regulation using techniques that protect name rights on an

ex-ante basis by hardwiring certain kinds of protection into

the technical system.

Example

The clearest examples of preemptive regulation are name

exclusions as well as the refusal to permit the creation of new

TLD's.

Another form is procedures regulating the initial assignment of

names in new top-level domains ("sunrise" procedures). For

example, give trademark owners privileged access to domain name

registrations in the opening phase of new top-level domains. This is a

completely new kind of trademark right; such privileges over the

adoption of names by third parties have never existed before.

So what’s the problem?

Limitations on the ownership of words and names meant to

protect freedom of speech and fair use can easily be

squashed in a regime based on technical exclusivities.

Expanding Surveillance Rights

Under traditional trademark practice, the owner of a mark is

responsible for all policing and monitoring activity and costs.

However, the creation of an institutional regime based on control of

the DNS root has made it possible for intellectual property interests

to claim new and expansive rights of surveillance over the adoption

of names by users. The vehicle for these new rights is the WHOIS

database.

New Rights in Names

With the release of the Interim Report of WIPO's second domain

name proceeding (WIPO 2001), several new types of names were

excluded such as names of international organizations,

nonproprietary pharmaceutical names, geographical indicators,

country codes, personal names, and trade names. This de-facto

created new rights in names.

Free Expression vs. Controlled Vocabulary

Which approach to domain names-

coordinated free expression or controlled

vocabulary-is better suited to the internet?

Muller argues that the DNS is a system of coordinated free

expression.

Example

For instance, the assumption of Controlled vocabulary

advocates that users who type in the domain name of a

company and find something they did not expect (say, a

protest site rather than the company) will not be smart enough

to look elsewhere. They will become completely diverted and

lost to the company forever. This notion is inaccurate, since it is

like saying that someone who has incorrectly dialed a

telephone number will not correct the error and redial.

Chapter 12: Property Rights and Institutional Change

There is a disjunction between the capabilities of the technical

system and the behavior of the new institution. Although

millions of new top level domains are technically feasible, the

technology is limited by rules and procedures imposed by a

central authority.

How societies could settle upon and

retain institutional forms that were

inefficient and even destructive?

Douglass North (American economist) suggested that a

society can get locked into a dysfunctional institutional

framework when the rules reward people and organizations for

acting in ways that perpetuate its inefficiencies. This "positive

feedback" can explain why "natural selection" and competition

don't eliminate inefficient institutions.

In the case of domain names, we can spell out the stages as follows:

As the Internet was commercialized, the availability of only one global commercial top-level domain gave second-level domain names under.com a special value as an economic resource.

That special value stimulated speculative, defensive, and abusive registrations.

This, in turn, provoked those with preexisting rights in names to lobby politically against further expansion of the name space.

Failure to expand the name space further enhanced the value and power of names in .com. This fueled more speculation, more politicization of the DNS, and continued the cycle.

The value and dominance of .com was enhanced by opening it up to multiple, competing registrars. The lower price and more active marketing of .com names increased speculation.

The Internet governance process could not get large numbers of new TLDs past the trademark interests. on the other hand, it could not avoid creating some new TLDs because of the demands of potential entrants. So it opened up a small number of new TLDs.

With that restrictive policy in place, trademark holders will rush to register their existing .com names in the new generic TLDs to avoid any competition with their .com holdings. The mad desire to protect existing names also magnifies the opportunity for speculation.

The Result

Stability= all change is guilty until proven

innocent

Chapter 13: The Taming of The Net

Since the mid-1990s, the Internet has had a revolutionary

impact on culture and commerce. At the beginning, many

believed that the internet was a kind of Garden of Eden

exempt from the corruption of worldly institutions.

Now, of course, the world is starting to close in on cyberspace.

The institutionalization of the Internet is taking place on a

variety of fronts. But the administration of the Internet's name

and address root was the first to produce a global solution.

It seems that institutionalization under ICANN means that the

Internet's role as a site of radical business and technology

innovation, and its status as a revolutionary force that disrupts

existing social and regulatory regimes, is coming to an end.

But no doubt there are other technologies and systems

hatching somewhere, ready to take the world by surprise.

JEOPARDY!

100

200

300

50 50 50 50 50

100 100 100 100

200200200200

300 300 300 300

History Theory Issues Themes Misc.