A PROPOSAL FOR RESTRUCTURING THE .US DOMAIN TO ENCOURAGE
ENTREPRENEURIAL OPPORTUNITIES AND PROTECT FREE SPEECH

The Association for The Creation and Propagation of Internet Policies (A-TCPIP), and its working group, the Domain Name Rights Coalition (DNRC), believe that the .us domain represents a tremendous resource for commercial and non-commercial speech. Properly used, the .us domain would provide opportunities for entrepreneurs and small businesses to experiment with new registration schemes or offer new goods and services through the Internet without placing the entire structure of the Internet at risk. In addition, the .us domain would provide a safe haven for free speech and other core United States principles in an increasingly international Internet that does not attach the same importance to free speech and the free exchange of ideas. This could be done by adopting a statement of principles, as recommended below.

A-TCPIP/DNRC asks those interested in the tremendous potential of the .us domain to read the proposal detailed below in preparation for the future Commerce Department rulemaking promised in the Green Paper. We hope that the ideas presented here will spark other ideas and create an open and rich debate among interested parties. We also hope that those who support or disagree with these ideas will let us know, and that all participants in the debate should feel free to adopt whatever portions of the proposal appeal to them.

The .US Domain - Flagship, Safe Haven, and Laboratory

The task force faces difficult, conflicting goals. On the one hand, the United States sincerely wishes to internationalize the Internet and turn over management of the Internet to the private sector. On the other hand, the United States recognizes its commitment to the continued well being of the Internet and the need to protect American citizens, interests, and values on the Internet. The .US domain and the creation of the Internet Council to administer it, as described below, provide a way to reconcile these goals.

All countries recognize the rights of nations to order their own domain space. Many countries, such as Canada and the United Kingdom, have used their domain space to pioneer new forms of Internet administration and provide attractive alternatives for their citizens to the gTLDs. Yet the United States, which has the largest and most vibrant Internet community in the world, allows .US to lie fallow.

Reorganizing the .US domain would permit the United States to develop a "flagship" domain. Because the domain space clearly lies within U.S. sovereign jurisdiction, no one should question its administration by an Internet Council, described below. Because of the tremendous prestige American technological leadership and innovation have in the world, other nations and private industry would look to the .US domain for appropriate models. Use of the .US domain also permits the Internet Council to establish guiding principles for use within the domain space that enshrine core American values such as open communication, free market competition, and respect for entrepreneurism. In this way, America can lead development of the Internet in the same fashion it has lead the development of democracy in the world in the 20th Century - by consistently providing a shining example.

Reorganizing .US to be administered by an Internet Council also creates a safe haven for American citizens and interests. The .US domain would provide individuals with a place for political speech free from fear of violating the content restrictions of other countries - who could simply block the .US if they found exposure to such unbridled information too "dangerous" or "polluting" for their culture. It would also provide a laboratory for entrepreneurs to provide Internet services, such as registering second level domains, without risking the Integrity of the entire Internet. Finally, it would allow the United States to experiment and discover the proper balance of free market enterprise and government oversight to produce a dynamic, viable Internet that protects both private and public interests.

A. The U.S. Internet Council Makes Sense Even in the Context of a Global Internet

A-TCPIP/DNRC has spoken with commercial organizations and policy groups about the U.S. Internet Council and found broad support for the idea. Those with whom we spoke found the U.S. Internet Council to be a logical idea and completely in keeping with the long-term goals of turning over the Internet to a representative private governing body. The U.S. Internet Council strikes everyone we have talked with as a particularly powerful concept because it allows the world's most dynamic and diverse Internet community - the U.S. Internet community - to come together around a table and negotiate policy for the .US domain name under U.S. law.

It was clear to all that the U.S. Internet Council would serve as a testbed for implementing new ideas without significant delay. The U.S. Internet Council, as a single domestic governance organization, would have the advantage of operating under a single language, a single body of federal law and one national border (which will allow all attendees to travel to meetings at reasonable expense). Further, although the concept of domestic governance structure on an "international Internet" at first blush sounds anachronistic, everyone we talked with appreciated that the international telephone system and all international communications are governed at both domestic and international levels. The same model could easily apply to the Internet. In fact, many believe that the only way to include and protect the voices of small businesses, entrepreneurs and individuals (the largest constituency of the Internet) will be to build their participation into domestic governance structures, which will then advise the U.S. on international positions.

B. The U.S. Internet Council Will be a Model that the World Will Watch Closely

A-TCPIP/DNRC believes the U.S. Internet Council will set an example for the world on how to organize a representative structure for Internet governance. The United States holds a special position in the Internet community because we have the benefit of the most dynamic and diverse Internet community in the world. The U.S. Government built the Internet, our students and faculty benefited the most from its use in the 1980s, our companies are benefiting the most from its commercial growth in the 1990s, and our citizens enjoy the cheapest and most plentiful access to all of its political, social, personal and commercial content. The rest of the world will catch up, but has not yet done so.

Certainly the organization of a U.S. Internet Council will involve some difficult decisions, including what Internet stakeholders should be represented and how they should be selected. In its comments to the Department of Commerce, Section B 3, A-TCPIP/DNRC recommended that the U.S. Internet Council include representatives of schools and libraries, small and large ISPs, small and large businesses, Internet public interest groups and Internet consumer groups (consumer groups and public interest groups are not necessarily the same, since AOL could make a good argument for representing Internet consumers, but not for being an Internet public interest group).

A-TCPIP/DNRC believes that it would be appropriate to bootstrap the Council by having the Administration and Department of Commerce appoint an initial Council to commence the policy discussions. Applications for Council positions should be accepted and reviewed by the Administration and Department of Commerce to create the broad representation that A-TCPIP/DNRC has advocated. We point to the variety of situations recently in which the federal government has chosen representatives of Internet and telecommunications communications, including the NII Advisory Council and the North American Numbering Council. As a representative democracy, we are good at choosing representatives and accept the fact that the system will work to correct itself if the best representatives are not chosen in the initial round (provided the overall process is set up in a fair and equitable manner).

C. Task of the U.S. Internet Council

As its primary ongoing task, the U.S. Internet Council should be given the policy oversight of the .US domain name. It is long overdue to separate out the technical management of the .US domain from policy considerations. Newly reorganized, or with addition of secondary domain names (discussed below), the .US domain name will ease many of the problems facing the U.S. Internet community and remove tremendous pressure from the NSI domains and the proposed five new domains. This last is important, as the Green Paper encourages only a very cautious expansion in the face of what will no doubt prove a tremendous rush to register names in the new domains.

The .US domain name under its current governance and structure does not serve our nation's needs. Unlike the country codes of the rest of the world, few U.S. users even know .US exists. The structure of .US is part of the problem. It is currently limited to city and state delimiters, which are useful to municipalities and a few libraries, but not to those in the dynamic and highly mobile U.S. Internet community. The type of personal, political and commercial speech in which we engage, not the specific location where that speech takes place, should organize our SLDs in the U.S. Proper reorganization will give individuals a place for their personal homepages, organizations a place for community pages and political presentations, and small and large businesses a place for listing goods and services.

But solving the structural problems of SLDs in the .US domain name is only one issue. The U.S. Internet Council must also solve the governance problems within the .US domain name.

D. Separation of Policy and Technical and Administration Management Functions of the .US Domain Name Is a Clear Need

Separation of the policy and technical/administrative functions of the .US domain name is long overdue. With tremendous thanks to John Postel for his technical brilliance, the policy functions for the .US TLD should be entrusted to a representative body. The technical community should be a part of this body, but others must be granted a voice as well. As an alternative model, the North American Numbering Council listens closely to the engineers who describe the problems and long-term solutions necessary for scalability of the telephone network, but follows the directives of Congress, its charter and the needs of the larger community in determining which technical recommendations to implement.

Today, domain name allocation decisions are made within the core of a small technical community. RFCs are the traditional way in which the technical Internet community discusses technical standards. Although the Requests for Comment are available to all who know the location of the particular website, most Internet users have no reason to monitor this area for policy debates. In fact, the IETF and other Internet organizations that work with RFCs pride themselves on not taking into account the "policy implications" of technical matters. At the recent IETF meeting in Washington DC, a group of attendees urged the organizers to set up a Birds of a Feather session to discuss the policy implications of domain name and governance decisions. Their request was declined as inconsistent with the technical character of the conference.

Policy belongs with representative policy bodies. The U.S. Internet Council will be a single body that both the user community and the technical community will watch closely. Its proceedings will be open to all and made known to all by Federal Register and website notice. Just as the Department of Commerce Notice of Inquiry attracted hundreds of new participants to the Internet governance debate by making the issues known to wider audience, so too will the U.S. Internet Council become a focus for discussion and debate. A-TCPIP/DNRC believes that a process of open but expedited notice and comment period with a public hearing period will provide a basis for reorganization of the .US domain name in a way that benefits the entire country and sets a precedent for a new and open type of domestic governance.

E. The White House and Department of Commerce Should Provide the U.S. Internet Council with a Small Number of Guiding Principles for Reorganization.

A-TCPIP/DNRC does not believe that the charter for a U.S. Internet Council needs to be extensive. We cannot even anticipate the full range of questions that will be posed in the future. In its charter, A-TCPIP/DNRC recommends focusing on the structure and composition of the U.S. Internet Council to make it representative and accountable.

While a diverse and balanced composition of the U.S. Internet Council can be derived from the private sector, A-TCPIP/DNRC does not believe that accountability and trust can be provided solely by the private sector. The IAHC/POC lost the trust of the Internet community because their promise of fair and equitable decision making was not kept. The periods of open discussion were followed with closed and off-the-record ex parte meetings; the decisions were never clearly and explicitly linked to comments received; and radical new proposals emerged in final form without any open and public consideration by the Internet community. We need the U.S. Government to provide accountability and oversight, at least for the near future.

In its comments to the Department of Commerce, A-TCPIP/DNRC recommended one way in which the U.S. government might take on a limited role, i.e., by organizing the U.S. Internet Council under the Federal Advisory Committee Act. We recommended that the Department of Commerce be appointed the government agency to which the U.S. Internet Council would report. Clearly, NTIA has a mandate for serving both the commercial and noncommercial telecommunications needs of the U.S. citizens and the expertise to handle such a mission.

FACA would provide the limited oversight and accountability that will foster trust and confidence quickly in the U.S. Internet Council. In particular, meeting notices would be published in the Federal Register, on a U.S. Internet Council website, and on the Department of Commerce website. FACA requires that meetings be public, with very limited exceptions, so the public would be invited to participate. FACA requires that minutes of the meetings be kept and published. The North American Numbering Council has done a superb job of making its meeting minutes available to the public on its website shortly after the meeting is completed. Finally, FACA allows observers and participants an appeal to the government if they believe that the Council is acting in an improper or illegal manner. Overall, the Department of Commerce will have a role that is not costly, either in terms of money or personnel. However, its sagacious oversight of the Council will generate enormous amounts of good will and trust.

F. Guiding principles for the U.S. Internet Council

A-TCPIP/DNRC would be happy to assist the Administration in drafting a charter for the U.S. Internet Council. As a starting point, we recommend adoption of a broad set of guidelines for the creation of new SLDs (second level domain names). Over the next 2-3 years, the U.S. Internet Council should only create SLDs where they will help to better organize Internet communication space.

Currently, the Internet has the organization of a frontier town in the Wild West, with industrial sites popping up next to residences and residential shopping areas. It is time to engage in some communications planning, analogous to urban planning, and create specific zoning for the many types of speech in which we engage. Proposals to the U.S. Internet Council should suggest SLDs that will better organize space and serve the noncommercial and commercial communities of the Internet broadly. Later, as technology improves, there may be room for the introduction of more individually tailored domain names.

While the .US management may be given to a single contractor (A-TCPIP/DNRC has no express view on this matter), the SLDs of the .US domain name can well be given to many different registrars and provide the U.S. and the world with an exciting opportunity to develop competitive registry technology and policy. Unlike the registries and registrars proposed in the Green Paper, registries and registrars in .US will not face significant barriers to entry. Nor will they have imposed upon them unrelated policy requirements, such as the mandatory inclusion of alternate dispute resolution processes. Instead, registries and registrars in .US would be permitted the full scope of their entrepreneurial imagination.

A-TCPIP/DNRC submits that certain registries which will have instant recognition and cachet - such as .COM.US and .ORG.US - and they may well be excellent candidates for shared registry experimentation. ISPs will probably be very interested in making sure that they can register their customers quickly, easily, and preferably directly, into their SLDs. Other SLDs may be good candidates for exclusive franchises, such as a registry that promises to register only elementary schools, or political organizations. The U.S. Internet Council is the appropriate body to consider these issues and make the assignments. We think that the process will be one that the entire world will watch, but one made far simpler by being under the single umbrella of U.S. law.

Principles for A Democratic Internet of Noncommercial and Commercial Speech

A-TCPIP/DNRC believes that very few specific Internet governance decisions need to be made today, but that basic and fundamental principles to protect the Internet for noncommercial as well as commercial speech must be set out clearly and explicitly. Although DNRC repeatedly urged the IAHC/POC to adopt such principles, we never saw such principles even considered. The only protections clearly set out by the IAHC and POC were intellectual property protections which led proponents to conclude openly and publicly that intellectual property rights should take precedence over free speech and all other communication on the Internet. In an email discussion about the Cato Institute briefing paper on domain names, redistributed on the listserv of Declan McCullagh of Netly News, one such advocate wrote: "Why should freedom of expression be a primary concern? Shouldn't trademark protection be of equal concern? Suppose I want to "express myself" by using the domain name "cato.org" or "cato.gov"? Should this be permitted and encouraged? Avoiding confusion should be primary concern, protecting intellectual property second. Promoting expression and commerce should be third."
Email Subject FC: Mark Rasch Response to Summary of Cato Domain Name Paper, October 22, 1997.

Not only does the "Intellectual Property First view" run counter to the noncommercial origins of the Internet and the U.S. principles of free speech, but also it is bad business for those engaged in commerce on the Internet. Like the telephone system, the Internet has become an infrastructure for communication, and those who provide that communication benefit financially. The growth of these companies, including our local AOL, is a joy to watch and shows us that providing people with access to each other as well as to goods and services makes economic sense. Keeping the Internet open as a medium of communication for all speech, and preserving an Internet world in which each individual can be a personal publisher of webpages for his/her organization, family or political interest, is good business.

H. Model Principles Can Be Found in the Framework
for Global Electronic Commerce

A-TCPIP/DNRC believes that the Framework for Global Electronic Commerce ("Framework") presents an excellent model for the upcoming Internet Governance recommendations. The Framework recommended that the world community adopt four basic principles, which would support a fair and level playing field for the growth of the commercial side of the Internet. These principles are based on the economic ideals of open competition and free market which are the foundations of the U.S. economic model. Although not all countries subscribe to these principles, it is fitting and proper for Internet participants to live up to models which we think will improve our worldwide economic well being.

Types of Speech to Be Explicitly Acknowledged

In setting out guidelines for Internet governance, the following types of speech merit express recognition:

Academic, Educational, and Medical Information

As the Draft Framework so accurately observed: "students across the world are benefiting from instantaneous access to far flung libraries, universities, and other troves of data via the World Wide Web. Doctors are reinventing their profession, utilizing tele-medicine to administer off-site diagnoses to patients in need." Draft Framework, Background Section.

Political Speech

Personal and Community Speech

The Draft Framework also accurately states the tremendous impact of the Internet on the power of the individual: ".. the Internet democratizes societies and empowers citizens with information." Further, the phenomena of email, chat rooms and Internet relay chat, and websites that serve as communities for organizations, parents, children, and many other groups show the levels of personal communication which the Internet serves. Steve Case commented on Internet communities in his August letter to AOL users writing, "For families and children, this new medium is tremendously empowering. In addition to learning about a wide variety of topics, they can interact with a wide variety of people, from any walk of life. The people aspect is important. We've learned that this medium is not just about content, but also about people. The Internet is creating an electronic 'melting pot' that fosters a broader and deep sense of community." A Community Update from Steve Case, available to AOL users, August 4, 1997.

Commercial Speech:

There is no end of commentary on the increasingly important role of the Internet in our commercial interactions. The Framework for Global Electronic Commerce proposed an excellent process for developing the principles, contracts and common understandings needed to advance these goals. A-TCPIP/DNRC only wishes to add that a concern for entrepreneurs should be a major subtext of any new rules that concern the commercial side of the Internet. BusinessWeek and other publications continually point to entrepreneurs as those who are leading the way in exploiting the Internet and developing Internet-based goods and services in a creative and profitable manner. These entrepreneurs must have the same rights and protections in cyberspace as they have in the real world - which includes having available the same basic words for their goods and services and corporate names as other entrepreneurs before them. Entrenched commercial interests have traditionally lobbied for protection against newcomers , but the success of the Silicon Valley is based on allowing entrepreneurs the full benefit of free and unfettered competition. Commercial speech must be protected for Internet entrepreneurs as well as older businesses.

Principles to be Adopted

To protect all forms of communication on the Internet of the 21st century, A-TCPIP/DNRC strongly urges the White House and Department of Commerce to adopt core principles which direct those responsible for Internet governance to keep the Internet as a communications tool for everyone- not just those with demonstrable intellectual property rights. A-TCPIP/DNRC recommends adoption of the following guiding principles:

* The Internet is "the most participatory marketplace of mass speech that this country and indeed the world has yet seen." ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa June 11, 1996), affirmed, _ US _ (June 26, 1997). Accordingly, protection of the openness and freedom of this speech will be a primary priority of Internet policy and protections.

* No Internet policy will prevent individuals or businesses from using their full imagination and creativity to create and label products, services and content for the Internet, just as they do in traditional channels of communication and commerce.

* Policies for the Internet will affirmatively and expressly set out protections for free speech and open communication, as well as protections for intellectual property rights in the digital environment.

* Internet policies will protect and promote the development of new Internet products and services by entrepreneurs and small businesses, as well as the ongoing marketing and sale of products and services by long-established companies.

Conclusion

A-TCPIP/DNRC believes that the proposed restructuring of the .US domain will benefit all Internet users. To prosper, the free market for goods and services must go hand-in-hand with the free market for ideas. Restructuring the .US domain permits us to protect core values of free speech and free competition without putting the rest of the Internet at risk.

For more information on A-TCPIP/DNRC and its proposals for Internet reform, please visit our web page at www.domain-name.org.