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September 20, 1998

ORIGINS, SKIRMISHES, ENDGAME DNS WARS PART 3: ENDGAME

By CBR Staff Writer

Last week we examined the battles that have been fought for almost three years over the future control of the internet’s domain name system (DNS) up until the publication of the US government’s green paper on the future management of the DNS, which arrived January 30 1998 (09/09/98). Now, with just nine days to go until September 30, which is the day the US government hopes to cease funding of the administration of the DNS and move it over to a private consortium formed from the internet community and based upon a consensus, we conclude this three part mini-series bringing the endgame politics that have engulfed the community in trying to form that consensus. The green paper, a 15 page discussion document written mainly by President Clinton’s senior advisor on internet issues, Ira Magaziner, together with Becky Burr, the senior internet policy advisor at the National Telecommunications and Information Agency (NTIA) suggested a number of measures that have shaped the debate since then. It said the functions of the Internet Assigned Numbers Authority (IANA) should be passed to non-profit corporation, complete with a CEO and board of directors. Network Solutions Inc’s (NSI) federal cooperative agreement, which expired March 31, should be extended through September 30 to help the transition to the new system. The US government will provide policy oversight during the transition, but will be definitely be out of the loop on or before September 30 2000. A maximum of five new generic top-level domain names (gTLDs) will be added before September 30 with each TLD having its own registry and each registry managing just one TLD. It also said NSI must give up control of the A root server and the root server system to the not-for-profit organization when instructed to do so by the government and during the transition period (up to September 30) NSI must split its registrar and registry businesses.

By Nick Patience

First, the ceiling of five new gTLDs, each managed by its own registry and each registry managing just one gTLD pulled the rug out from under the plan of the Council of Registrars (CORE), which, as we detailed last week, called for seven new gTLDs managed by one central non-profit registry with competition in the registrar market. CORE had signed about 80 companies to be registrars in its new system. CORE complained at the time of the green paper that the US government would still have too much control over the DNS under the plan but that it was still confident of being at least one of the registrars. One thing the green paper, which was admittedly just a discussion document, sidestepped was the issue of trademark and how they impact on domain names. It asked openly for advice from the community on what to do when disputes arise. After the green paper’s publication, a 30-day comment period ensued. IANA director Jon Postel chose this time to conduct a highly controversial experiment, which many on the community saw as muscle-flexing on his part. Postel redirected five of the 12 root servers to get their zone file updates, containing information about where every domain name in the world is located, from his machine at the University of Southern California, rather than from the A root server at NSI’s Herndon, Virginia headquarters. The test ran from January 23 to February 4 and was started without the knowledge of NSI or the government. Postel said at the time that the test demonstrated the internet’s ability to transition through the reconfiguration of the secondary root serves. The government did not question his motives publicly, but Magaziner also said, I don’t think we’ll see it happen again. Adding to the increasingly litigious atmosphere, a Washington DC attorney, William Bode sued the National Science Foundation and NSI in early February, alleging that the Intellectual Infrastructure Fund, into which a third of all domain name registration fees are paid, was an unconstitutional tax, because its collection was authorized by the NSF, not by an act of Congress. He went on to file other suits that demanded that the fund, then amounting to about $50m, be re-distributed to all those who have ever paid for registering a domain name and that NSI give back some of its profits over an above what can be considered a reasonable level of profit. It may have seemed either slightly wacky or like a lawyer on the make – or both – but the Judge Thomas Hogan did in fact rule in favor of the first part of Bode’s case in mid-April, declaring the fund an unconstitutional tax. He did not rule on whether to refund the money or the NSI element, but that judgement was enough to caused quite a stir in Washington. Arrangements were made to add a provision to an Emergency Supplemental Appropriations Bill that retroactively ratify the charges (05/04/98). That led the judge to reverse his decision earlier this month, but the case is going to appeal.

Transition period

Meanwhile, due to tardiness in getting published in the Federal Register, the green paper comment period was extended through March 23, just a week before the end of NSI’s agreement and the start of the transition period. The comment period created a kind of ‘phony war’ with everybody preparing their comments. CORE chose this time to re-open the application process to become one of its registrars. Most comments were restatements of previous positions: most organizations from outside the US thought the whole process was too US-centric – a charge the government later admitted – CORE and the Internet Society thought the paper should have concentrated more on the dissolution of NSI’s monopoly, while NSI was broadly supportive but thought it should be able to keep its registry and registrar businesses together. All pretty predictable stuff, but it needed saying. IANA was supportive but through the CORE model was best for the new organization. The government received about 630 comments in all and that took some time to get through. But Magaziner promised that every one will be read. That took us forward to June and on the 5th the government published its white paper – its final policy document on this issue before the NSI and IANA contracts would end almost four months later. The white paper detailed an even more hands-off approach by the government than ever before. It basically reiterated much of what the green paper said and what was not repeated was retracted. The most important retraction, and another kick in the teeth for CORE was the withdrawal of the proposal to create five new gTLDs and instead create none, leaving any such decisions to the future non-profit corporation. And although it says the final decision is up to the corporation, it also recommended that there should be competition in both the registry and registrar markets. In fact the white paper can be summed up by saying that the government wanted to get out of DNS administration and leave everything up to the new corporation. It insisted that the corporation must arise out of a bottom-up procedure and represent a consensus view across the industry. That set the wheels in motion for the most frantic part of the DNS wars, which is finally coming to at end in the next few days. The same day the white paper was announced, a group emerged trying to establish just such a bottom-up consensus. It was started by the Domain Name Rights Coalition (DNRC), and internet user’s rights organization. Kathy Kleiman of the DNRC contacted her old professor, Tamar Frankel at Boston University, an expert in corporate law and fiduciary and asked her if she would chair a public meeting on the subject. However, Frankel was then approached by Tony Rutkowski and finally Barbara Dooley, the executive director of the ISP trade association, the Commercial Internet eXchange (CIX), who took over the organization of the meeting, freezing out Kleiman and Rutkowski in the process, a move that has never been properly explained. That gave birth to the Global Incorporation Alliance Workshop, which planned a meeting for the first two days of July in Res

ton, Virginia. The name was eventually changed to the International Forum on the White Paper (IFWP).

Evolutionary process

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IANA, meanwhile, perhaps getting a little ahead of itself began its self-styled reconstitution through an evolutionary process to a non-profit company – assuming that it would be the central hub around which any non-profit entity would be built. But such an approach was not going to wash as there had clearly been very little outside input. The IFWP, meanwhile had formed a steering committee comprising almost exclusively of trade associations, from the US, Europe Asia-Pacific and South America. But old suspicions die hard. NSI was involved around the time CIX got involved, but then moved into the background. The internet Society smelled NSI’s hand behind the whole thing, however and wanted nothing to do with the IFWP at the start, saying that if it was not built around Postel and IANA, it would not work. However, Rutkowski and other IFWP mavens vowed to contact everyone who had submitted comments to the green paper and invite them to try and get a broad cross- section of the internet community. ISOC tagged a meeting on to the end of its INet’98 annual meeting, which was held this year in Geneva, Switzerland, as an alternative discussion forum, arguing that the Reston meeting was too close to Washington (it’s a suburb) and thus was not an appropriate place to hold a meeting of such international importance. However, within a few days ISOC accepted an invitation to join the IFWP steering committee and things started to take shape. The agenda was not posted until a week before the meeting and looked pretty ambitious, trying to cover every aspect of the debate from the make-up of the board of directors through members rights and liabilities, to domain names and trademarks; security and privacy. Magaziner addressed the meeting at the start, urging the participants to put aside old animosities and then left, not wanting to be seen trying to exert any influence. It rapidly became clear that meeting people face-to-face rather than through email discussion lists would demand a great deal more politeness and willingness to listen than many attendees had been used to – and it seemed to work. Consensus points were agreed on many issues. Much of it simply reiterated the white paper, but that wasn’t really the point. Nobody expected – or wanted – the meeting to come up with suggestions that veered wildly off the white paper line. But just getting 200 or so people in a room, talking face-to-face, many for the first time, was the major achievement of the Reston meeting. It would take a few more like that to put flesh on the skeletal agreements reached there, but it was a good start. Perhaps the one doubt over the meeting and the subsequent IFWP gatherings was one of self-doubt – do the people assembled really represent the stakeholders of the internet to which the white paper referred? Most people’s reaction was, maybe not, but it’s the best we are going to get. ISOC And the IFWP agreed that the next IFWP meeting should be the one at INet, but under the IFWP banner. Meanwhile, the European Commission also held a meeting on the subject on July 7. It was originally scheduled as an ‘IFWP spoiler’ on June 30, but the date was shifted,. However the meeting came to familiar conclusions, supporting IANA, CORE and with 12 speakers in one day, there was not much time for discussion. It appears to be more of a show of bravado by the EC than a serious attempt to move the debate forward. Progress was slow at the Geneva IFWP meeting, but it did advertise the problem of the new DNS administration to a lot of new people. There was consensus at the meeting that the councils (address, protocol and naming) will form the entity’s policies for ratification by the board, and that the entity is an open membership organization where the members themselves elect and remove the board. But the criteria and classes of membership are yet to be determined – something that is still to be resolved today.

Asia-Pacific perspective

The IFWP road show moved next to Singapore in mid August and then to Buenos Aires in late August for its last two meetings, the first of which provided the Asia-Pacific perspective on the matter, which many had not heard before. In particular if governments are excluded from any involvement on the board of the new entity, as seems likely, it will leave the ‘private sector’ in many of the Asia-Pacific countries in a bind – private sector in many of the countries in the region still entailing some government involvement. A final wrap-up meeting had already been suggested by this time to hammer out the actual documents. But after the Geneva meeting ISOC president Don Heath was already doubting the wisdom and instead urged everyone to support IANA. Postel issued the second draft of his proposal in early August and that was the point at which the IFWP-generated bonhomie started to break down. The first draft was what people expected from IANA and the second was supposed to incorporate points from Geneva. Not only did it not do the latter, it moved further away, as Don Telage, NSI senior VP told us, it actually ignored most of the consensus points. So Telage and NSI produced its own draft in opposition to IANA. The main differences between it and the IANA document were membership of the non-profit entity; representation and separation of powers between the board of the entity and the technical councils that make recommendations to the board; the need for DNS constituencies to have a disproportionate number of seats on the board to begin with to deal with the DNS issues that will arise. IANA then produced a third and what it said would be final draft, which said much the same as the second. Postel presented it at the end of last month to the Internet Engineering Task Force (IETF) meeting in Chicago and got a suitably sympathetic response from the gathered engineers. The draft placed a lot of power in the board of directors and Postel even proposed that he should select an advisory panel to approve board nomination. The final IFWP wrap-up meeting was set for September 12-13 in a closed format and September 19 in an open format. Bodies such as CORE, International Trademark Associations and other IANA supporters fell into line behind the draft and the final meeting was set for a showdown between the IANA proposal and that of NSI. The meeting was organized by the Berkman Center at Harvard University’s law school, which had stepped in after Geneva to provide a neutral forum for comparing the various proposals. Almost everybody involved was expected to attend, except IANA, which declined the invitation. Without IANA it would be meaningless, and NSI said it would not attend if IANA wasn’t going to be there. So the government finally stepped in to bang heads. Apparently at the direct request of the government, NSI and IANA began talking about a joint proposal in the first week of this month. That caused the Harvard people to cancel the meeting, somewhat controversially, and the two groups talked in private for almost three weeks, resulting in a draft published late last week with only a few days allowed for outside comments (09/18/98). So, after around two and half years of wrangling, the main two players, both federal government contractors, have come up with a plan to submit to the government to take over the operations they currently run. The more things change, the more they stay the same.

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