Mr. Ira Magaziner
Senior Advisor for Policy Development
The White House
Old Executive Office Building
Washington, D.C. 20502

Re: An Open Letter With Initial Commendations
and Concerns of the A-TCPIP/DNRC

Dear Mr. Magaziner,

The Association for the Creation and Propagation of Internet Policy (A-TCPIP) and its working group the Domain Name Rights Coalition (DNRC) thank you and your team for the tremendous job you have accomplished. For the first time, the Internet community has a working, legitimate structure to frame the debate on Internet governance; a structure that recognizes the important diversity of voices in the Internet community and the value of individuals, entrepreneurs, and free market competition in building the Internet.

In particular, A-TCPIP/DNRC applauds the paper's commitment to explore reforming the .us domain. As we have said before, .us presents a tremendous opportunity and resource for the United States that has lain fallow for too long. We look forward to the robust debate on these proposals that will follow, and again offer our assistance in any way possible. We urge you to expedite the .us rulemaking proceeding discussed in the Green Paper and release a request for comment as quickly as possible. Restructuring the .us domain may relieve many of the issues and concerns associated with the current gTLD rulemaking, as well as create desperately needed usable domain space.

While grateful to the task force for the job done so far, and mindful that this is but the first step in the debate, A-TCPIP/DNRC feels the need to express concern on several key issues raised by the Green Paper. First, we worry that the White House has - as it did in the electronic commerce paper this summer - failed to affirm the core principles of free communication which have contributed so much to the growth of the Internet and mean so much to us as American citizens. The United States has championed free speech around the world, and has always maintained that the free market for goods and the free market for ideas must go hand-in-hand. We see the truth of this today in Asia, where the attempts to set up free markets in autocratic regimes have failed catastrophically. At this moment, when the United States will set the tone for world debate on Internet governance and development, we must not shirk our responsibilities to our citizens and the world. The final paper should include a strong endorsement of all non-commercial speech and a recognition that rights of free speech frequently take precedence over intellectual property law.

Second, A-TCPIP/DNRC worries that the Green Paper creates potential barriers to entrepreneurs entering the domain name business. Dual T1 connections and 24 hour guards makes it prohibitively expensive for smaller businesses to enter the market as registration services. Furthermore, allowing one company, through the mechanism of a subsidiary, to act as both a registry and registrar seems likely to stifle the competitive nature inherent in the Internet at a time when it most needs competition and innovators.

Third, while the Green Paper makes it clear that the process for deciding both technical and policy issues should be transparent, representative, and accountable, the Green Paper does not explain how the proposed structure will achieve these ends. Potentially, the proposed corporation could become a dangerous tool, achieving the exact opposite of its lofty goals. Non-profit corporations, or corporations generally, are not known for their open and democratic processes. On the contrary, decisions could take place behind closed doors and focus on narrow, short-term interests. Because the paper proposes no safeguards, such as term limits, open meeting requirements, or democratic elections (the paper speaks of "designation," implying some non-democratic process) the Board could easily become subject to capture by narrow interests or become completely out of touch with the Internet community. The proposed composition of the Board aggravates this concern. Despite the fact that all recent surveys have shown that non-commercial uses predominate over commercial uses of the Internet, the Green Paper proposes that five of the seven "Internet community" seats on the Board will go to commercial interests. Without accountability safeguards in place, and with a representation scheme that heavily favors commercial use, it is difficult to see how the Board will protect the diversity of voices which the Green Paper recognizes make up the Internet community.

Fourth, while recognizing the legitimate rights of intellectual property owners (small businesses and entrepreneurs, after all, have as much interest in preserving their rights as large companies), we feel the Green Paper goes too far. Why is it necessary, or even desirable, to force registries and registrars to provide alternate dispute resolution? As the Green Paper itself noted, recent case law indicates that registering a domain name for someone does not create trademark liability. Why then put registries and registrars at risk by forcing them to become involved in this thorny and technical issue? This requirement may well prove an additional barrier to entry, frightening away potential entrepreneurs who don't want to risk liability in an area of law they don't understand. If ADR proves desirable, registries will offer it as a value-added service. Why not let the market decide?

Additionally, the 30-day window to file an action to suspend a domain name leaves small nameholders and those with pressing issues vulnerable. For example, if McDonalds were accused of planning to level a section of rainforest for cattle grazing next week, someone would want to put up McDonalds_klls_trees.Pol right away. Under the proposed 30-day rule, McDonalds could suspend the name until it was too late.

Finally, we ask that the task force to clarify quickly the timetables under which the Green Paper proposal will move forward. The Green Paper identifies itself as a Department of Commerce rulemaking, but does not give a Federal Register publication date or a deadline for submission of comments. Nor does the Green Paper make clear if there will be a reply comment period, as is standard in communications rulemakings conducted by the Federal Communications Commission (FCC). The FCC and the communications community have found such reply periods crucial in developing consensus and understanding between participants in the rulemaking. In addition, entrepreneurs and small businesses who wish to compete as registries or registrars have no idea of the timetable to prepare applications, giving larger businesses capable of faster turn around time (or with better connections to receive advance warning) a significant advantage. A-TCPIP/DNRC therefore strongly urges the task force to provide a timetable for the proposal that specifically includes a reply period, so that interested parties may shape their behavior accordingly.

We recognize that you and the task force have done a superb job listening to the many conflicting voices and interests that make up this debate. We urge you however, as the debate grows and evolves, to pay particular attention to the concerns of individuals, small businesses and entrepreneurs who do not have the resources or connections to make themselves heard as loudly as others.