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

 

The Domain Name Rights Coalition (DNRC) is greatly concerned by the recent expansions of intellectual property rights in generic top level domains.  These expansions are being sold to the Internet community as a method of harmonization of various international enclosure schemes, which value the ideals of commerce and industry over individual rights and protections for speech.

 

DNRC believes that there is a growing necessity for the protection of the constitutional rights of American citizens on the Internet.  A such, the .us domain represents a tremendous resource for commercial and non-commercial speech. Properly used, the .us domain would provide that protection in a robust environment of free ideas and free speech.. This could be done by adopting a statement of principles, as recommended below.

 

DNRC asks those interested in the tremendous potential of the .us domain to sign onto the proposal detailed below .  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 should feel free to adopt whatever portions of the proposal appeal to them.

 

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

 

The United States government, through the Department of Commerce, has set in motion an attempt to internationalize the Internet and turn over management of the Internet to the private sector. This proposal will not debate the authority under which DOC can or cannot achieve that goal, nor whether the steps it has taken are prudent.  If we assume that DOC and its contractor, ICANN can control and internationalize certain technical aspects of the generic top level domain space (gTLDs), then it becomes increasingly important for the United States to officially recognize 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 that enshrines core American values such as open communication, and free speech 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 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

 

The proposed U.S. Internet Council would serve as a test bed 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, the international aviation system, 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

 

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 twenty first century, 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. DNRC recommends that the U.S. Internet Council include representatives of schools and libraries, other non-commercial organizations, 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).

 

DNRC believes that it would be appropriate to bootstrap the Council by having the Administration appoint an initial Council to commence the policy discussions. Applications for Council positions should be accepted and reviewed by the Administration to create the broad representation that 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 current generic top level 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 second level domains (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 provide other, needed services for individuals.

 

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. 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.

 

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. 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 Should Provide the U.S. Internet Council with a Small Number of Guiding Principles for Reorganization.

 

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, 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,  DNRC does not believe that accountability and trust can be provided solely by the private sector. The ICANN has largely 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.

 

The U.S. Government has been the governing force of the Internet for years, and no one will fault it for remaining in an oversight mode awhile longer. On the contrary, to suddenly abandon that trust would be seen as abdicating responsibility. To the majority of the Internet users, the U.S. Government is seen as the preserver of rights (having allowed all to join the Internet over the last few years) and democratic principles of openness and accountability (the traditional role of government in a democratic society). If the U.S. Government takes a nonvoting oversight role of the U.S. Internet Council, its role will remain consistent with moving the Internet toward responsible self-governance.

 

 

 

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 [fill in another agency here]

be appointed the government agency to which the U.S. Internet Council would report.

 

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.  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 [insert agency here]  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

 

DNRC recommends the by-laws for “newco” (requested by the Department of Commerce in their White Paper) promulgated by the Boston Working Group in 1998 as the starting point for a cohesive set of principals and by-laws. [insert URL here].  These by-laws were created in an attempt to open the then proposed ICANN bylaws to a more transparent, bottom-up and accountable process as envisioned in the White Paper. 

 

G.      The U.S. Internet Council Could Encourage Experimentation with

Competitive Registries Within the .US Domain

 

While the .US management may be given to a single (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.

 

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

 

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 ICANN to adopt such principles, we never saw them considered. The only protections clearly set out by ICANN were one-sided intellectual property protections which lead proponents to conclude openly and publicly that intellectual property rights should take precedence over free speech and all other communication on the Internet.

 

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.. 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.  Principles to be Adopted

 

To protect all forms of communication on the Internet of the 21st century, DNRC strongly urges the White House 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. This principle is most easily achieved through the .US domain, controlled by the governmental authority of the United States.  DNRC recommends adoption of the following guiding principles:

 

1.   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.

 

2.  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.

 

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

 

4.  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

 

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 that form the American way of life. 

 

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