Gov'ts Hold Reins in those National Domains

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Michael Geist <mgeist () pobox com>
Date: Mon, 10 Mar 2003 09:14:53 -0500
To: dave () farber net
Subject: Gov'ts Hold Reins in those National Domains

Dave,

Of possible interest - my regular Toronto Star Law Bytes column focuses on
ccTLD governance issues in the wake of last week's ITU meeting on national
governments and ccTLDs.  The column argues that the role of national
governments is far more pronounced than is generally appreciated with many
governments eschewing a purely self-regulatory approach due primarily to
public
interest concerns.  Instead, many ccTLDs feature national governments that
actively administer their domain or retain ultimate control through
legislation or contractual controls. Column at
<http://shorl.com/famajoladrapru> [Toronto Star]

<http://www.torontostar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/
Article_Type1&c=Article&cid=1035778927272&call_pageid=968350072197&col=96904
8863851>

MG

Governments Hold Reins in Those National Domains

Michael Geist

GENEVA-The story of Internet governance typically focuses on the Internet
Corporation for Assigned Names and Numbers (ICANN), a California, non-profit
corporation. Established by the U.S. government in 1998, its mandate is to
administer issues such as the allocation of new top-level domains and the
implementation of a domain name dispute resolution policy.

Although the U.S. government retains ultimate power over the system, ICANN
serves as the paramount example of self-regulation of the Internet, since
its leadership rests with private stakeholders such as business interests,
communication infrastructure companies, and, to a lesser degree, Internet
users.

Since its inception, ICANN has been at the centre of a storm of controversy.
Internet users have bemoaned their lack of influence as the promised nine
seats on the board of directors dwindled first to five seats and, more
recently, to zero. Commercial interests have complained about hesitancy
establishing new top-level domains.

While these criticisms have played out in the public eye, there has also
been a hidden side to Internet governance. That side revealed itself in
Geneva last week as delegates from around the world participated at an
International Telecommunications Union workshop devoted to the interplay
between national governments and country-code top-level domains (ccTLDs).

Various presentations revealed that the ICANN model of Internet
self-regulation is treated with a healthy dose of skepticism at the national
level. Rather, in the world of ccTLDs, the role of national governments is
far more pronounced than is generally appreciated. Many governments eschew a
purely self-regulatory approach in favour of actively administering their
domain, or retaining ultimate control through legislation or contractual
controls.

In domain-name parlance, the Internet is divided between two types of
top-level domains. Generic top-level domains (gTLDs), which include dot-com,
dot-net and dot-org, are generally considered international domains without
an attachment to any specific country or government.

Operating alongside the dozen or so generic top-level domains, are nearly
250 country-code top-level domains representing countries and territories
from every corner of the globe.

Within Canada, for example, the dot-ca domain name has become increasingly
popular in recent years as organizations seek to establish an online
presence that is clearly Canadian.

National governments tend to play an active role in their national domain
due to public interest concerns. In many countries, the country-code domain
is viewed as a national resource, with governments anxious to preserve at
least a small slice of the Internet that reflects local values and policies.

This approach frequently manifests itself by limiting domain name
registrations to individuals and businesses that meet local presence
requirements. This in turn ensures that local law will apply should a
dispute arise, and enshrining local privacy and free speech laws within the
national domain name policy framework.

Not all countries have chosen a public interest model. Some have adopted a
more market-oriented approach, competing directly with the generic top-level
domains by opening their domain name to registration by anyone. The two
largest country-code top level domains - dot-uk (United Kingdom) and dot-de
(Germany), which both have millions of registrations, have adopted this
approach.

At last week's Geneva meeting, it became increasingly clear that many
country-code domains are now struggling to reconcile commercial success with
the public interest. Some fear that as their domains pursue a market-based
orientation, the public interest priorities may be cast aside in the hope of
garnering ever more registrations and commercial success.

For example, representatives of the tiny Pacific Island of Niue attended the
meeting and reported how the island government had granted the rights to
sell dot-nu domains to a foreign company in return for Internet access
throughout the island and a share of the resulting revenue. With the company
firmly in control of the domain, the government lamented that the country
had seen few of the promised benefits. In response, it has now passed
national legislation seeking to re-affirm control over its own name.

The challenge of balancing commercial and public interest concerns resonates
particularly loudly in Canada. The Canadian Internet Registration Authority,
the agency responsible for administering the dot-ca (I currently sit on the
CIRA board), has admirably held two open elections and has so far retained
Canadian presence requirements that limit registration to those who reside
in Canada or with a Canadian connection. At the same time, commercial
success has come at a price as CIRA faces the challenge of achieving an
effective governance balance that limits conflicts and adequately reflects
the views of all stakeholders including Internet users, commercial
enterprises and governments.

With ccTLDs growing faster than gTLDs in most countries, the tension between
governmental and self-regulatory models of Internet governance is bound to
increase. National domains can clearly compete with gTLDs on a commercial
level or promote the public interest by placing limitations on the
commercialization of the domain. Whether both goals can be achieved remains
an unanswered question, one that may well determine the role of governments
within Internet governance.
------------------------------------------------------------------------
Michael Geist is a law professor at the University of Ottawa and technology
counsel with the law firm Osler Hoskin & Harcourt LLP. He is on-line at
http://www.lawbytes.ca and http://www.osler.com or e-mail mgeist@ uottawa.ca
.
-- 
**********************************************************************
Professor Michael A. Geist
University of Ottawa Law School, Common Law Section
Technology Counsel, Osler, Hoskin & Harcourt LLP
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist () pobox com              http://www.lawbytes.ca

BNA's Internet Law News - http://www.bna.com/ilaw
Toronto Star Law Bytes columns at http://shorl.com/derakoprutapu
Internet Law Text - http://www.captus.com/Information/inetlaw-flyer.htm
Canadian Privacy Law at: http://www.privacyinfo.ca
ICANN UDRP Info at http://www.udrpinfo.com
ccTLD Governance Project at http://www.cctldinfo.com


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