FC: South Africa vs. Internet: Tempest brewing over .za domains

[Declan McCullagh <declan () well com>]

---

From: Bretton Vine <bretton () deepsouth co za>
To: Declan McCullagh <declan () well com>
Subject: .za hijacking by DoC proposed ecommerce legislation
Date: Thu, 16 May 2002 03:12:00 +0200
Cc: mlawrie () apies frd ac za

Hi Declan

(apologies for the length of this document)

I wonder if you could kindly give some exposure to what I have put together
below. I find myself in a situation where I'm witnessing the development
and implementation of groundbreaking legislation related the Internet and
ecommerce in South Africa. However, certain developments have become a
farce and the South African Government (by means of the Portfolio
Committee on Communications and the Department of Communications) has
begun to embarrass itself far beyond what can be politely accepted. The
ignorant efforts of our elected officials have rapidly entered the realm
of grossly intolerable behaviour in an online context.

I've given a short history to the process of this legislation, and some
links to the relevant documents. For the purposes of this email I want to
focus on the Domain Name issues as described below. Please note that this
is not the only area of the proposed bill with major problems, but it is
the one creating the most confusion to the technical running of DNS
services in South Africa.

I have also included:
- brief overview of situation
- background to the ECT Bill in question
- links to ECT Bill
- paraphrased exert from proposed Bill
- namespace.org.za information
- background to redelegation of .za
- links to Uniforum, ISOC-ZA, Namespace ZA submissions
- extracts from RFC1591
- extracts from ICP-1
- some important links
- and finally, the submission of Mr Mike Lawrie himself.

Mike Lawrie is the current administrator of the .za domain and has
performed an outstanding job since 1994 on an unpaid basis. I'm confident
there are many in the ccTLD field or DNS related fields who can attest to
the character and ability of Mr Mike Lawrie in the capacity as
administrator of the .za domain and in other fields related to the
Internet or the provision of Internet service at an educational level all
the way through to a national level.

Please note, I do not speak for any of the individuals or organisations
mentioned. I am an Internet user and a domain name owner. My interest in
the proceedings is personal and I have no vested interest in the way
things turn out other than the continuing functioning of my own domain
name. Opinions are my own and do not reflect any employer or body I may be
aligned with.

In brief, Chapter 10 of the proposed Electronic Communications and
Transactions Bill seeks to establish a Domain Name Authority within South
Africa and give control of the .za domain to that Authority under the
auspices/control of the Department of Communications. This has been done
with zero consultation with the current .za administrator or other bodies
involved in the redelegation process which is already underway involving
Namespace ZA [www.namespace.org.za.]

In submissions to the Portfolio Committee on Communications various
stakeholders have presented their viewpoints to the committee on Chapter
10. These viewpoints, from technical experts in the field of domain names
and DNS administration do not appear to be given any value or getting any
consideration by the Committee or the Department of Communications at this
stage. Even the explanation of technical factors related to RFC1591 appear
to be lost on them. Quite simply, the Internet is a connection of private
networks which choose to communicate via commonly agreed upon protocols
while adhering to commonly agreed upon standards. The DoC seeks to write
its own standards, and the Chairman of the Committee says (paraphrase):
"The law in South Africa is the law. No-one is above the law. The Internet
(and ICANN was implicated as well) will submit to the law of South Africa"

They appear to feel that they can create legislation to force the
redelegation of the .za domain to the DoC. They refuse to accept the
provisions of RFC1591 or ICP-1 and do not seem to understand that if they
do not abide by the standards for connection to the Internet, then the
Internet will not connect to them.

The technical DNS folk are dealing with people in government who are
grossly ignorant of many factors related to the Internet and the
governance processes which already exist, in particular for DNS. While
some of these matters are technical, the fundamental ones are not. Yet
even though government has repeatedly demonstrated ignorance of technical
matters and has demonstrated no desire to allow themselves to be educated
(by people who are trying very hard to educate them) their fundamental
misunderstanding is not technical at all and shouldn't require any
education whatsoever.

Quite simply, the current .za domain administrator will not redelegate the
administration of .za to anyone incapable of fulfilling the requirements in
RFC1591 and IPC-1. ICANN won't allow this either. But the government
refuses to see reason here. You are welcome to draw your own conclusions
from the information supplied below. But if the legislation is passed in
its current form it would have a severe and detrimental effect to the
provision of Internet services in South Africa. This is not something that
needs to be tested in order for a point to be proven and the government to
realise the error of their ways.

It is a situation where the government is trying to hijack an existing
redelegation process by creating legislation of it's own, and in that
legislation transferring ownership. They fail to see that this will have no
effect whatsoever on how the rest of the world will choose to cooperate
with and/or view .za in light of RFC's and ICANN etc.

Background to the ECT Bill
[From: http://www.bridges.org/policy/sa/ect/synopsis_comment.html]
The Electronic Communications and Transactions (ECT) Bill is the
result of a democratic and consultative process that began in 1999
with the publication of a Discussion Paper designed to stimulate
discussion and debate. This was followed in November 2000 by the
publication of a Green Paper that highlighted the numerous legal and
practical issues that would need to be addressed in a Bill. In order
to fast-track the process, the Department of Communications (DoC)
decided to dispense with the normal procedure of publishing of a
White Paper -- which would have allowed for further consultation --
and tabled the current Bill as it stands, inviting only final public
comments. The deadline for submitting comments was 8 May 2002

A Copy of ECT bill can be downloaded at:
http://co.za/ect/ecommerce.doc

or viewed in HTML at:
http://co.za/ect/html1

Of note is Chapter X which is too large to include completely in this
email. Please refer the links above for a full copy of the proposed bill.

Chapter X seeks to establish a non-profit body of which the State is the
only shareholder and the Minister of Communications is given complete
control. It seeks to establish a board of directors of between 8 and 16
people.
[Note: .za is currently run and has been since early 1990's by one person
who receives no remuneration]
Stakeholders (The Internet community isn't the main stakeholder in the
bill) must nominate two persons to serve on this board. The Minister can
refuse to allow this if they desire.
No person may update a repository or administer a sub-domain unless such
person is licensed to do so by the Authority. This implies that I, as a
domain holder of somedomain.co.za now need a license for
machine1.somedomain.co.za.

The Authority must—
(a) administer and manage the .za domain name space;
(b) comply with the requirements for administration of the .za domain name
space as provided for by ICANN, its successors or assigns;
(c) license and regulate registries;
(d) license and regulate registrars for the respective registries; and
(e) publish guidelines on—
(i) the general administration and management of the .za domain name space;
(ii) the requirements and procedures for domain name registration; and
(iii) the maintenance of and public access to a repository,

I won't go more in-depth than that just now. You can read the Chapter if
you are interested. Quite simply the DoC has no understanding of DNS
administration or existing processes. They seek to write their own. They're
also horribly confused as to ICANN and GAC (Governmental Advisory
Committee) and seem to think that the GAC dictates policy to ICANN.

About Namespace ZA
Namespace ZA is an organisation formed as a result of co-operation between
the present administrator of the .ZA domain, Mike Lawrie, and ISOC-ZA in
order to better represent the South African Internet community on issues
pertaining to responsibility for the .ZA domain.

Background to Redelegation of .za
In November 1998, Mike Lawrie drew up Terms of Reference for the
appointment of a committee to draft conditions to be used for and
guidelines that are to be used by a new administration of the .ZA
namespace.

On Thursday, 4 February 1999, the ISOC-ZA Committee chose sixteen people
out of a list of nominees and volunteers to be on the Namespace Drafting
Committee (DC).

After over a year of deliberation and public comment, the Drafting
Committee completed its work and presented final documentation to ISOC-ZA
in terms of its terms of reference. On 13 March 2000, the proposal was
provisionally approved in principle and adopted by the ISOC-ZA committee.
The ISOC-ZA committee called for a public comment period, ending on 14
April 2000.

On 1 November 2000, ISOC-ZA passed a resolution to proceed with
implementing the recommendations of the Drafting Committee.

On 31 August 2001, Namespace ZA held its founding meeting. Interested
parties were invited to attend and the board was elected.

For a thorough background on the redelegation processes and stakeholders go
to http://www.namespace.org.za or http://www.isoc.org.za/dc
Both sites have background info and submissions.

The following submissions on the Bill itself apply in addition to Mr Mike
Lawrie's submission which is at the end of this document:

1) Uniforum submission
http://co.za/UniForumECTBillSubmission.pdf

2) Namespace Draft Submission - 2002-04-24
http://www.namespace.org.za/020424A_ectresp.htm
http://www.namespace.org.za/020424A_ectresp.doc
http://www.namespace.org.za/020424A_ectresp.txt

3) ISOC-ZA submission
http://www.isoc.org.za/ectbill.htm

4) Various industry bodies such as the ISPA (http://www.ispa.org.za)
endorse the Namespace submission as well as various individual companies
or groups of companies who have expressed their support or endorsement in
their own submissions

RFC1591 can be viewed at http://www.faqs.org/rfcs/rfc1591.html
Of particular interest:
* "The major concern in selecting a designated manager for a domain is
that it be able to carry out the necessary responsibilities, and have
the ability to do a equitable, just, honest, and competent job."

* "Significantly interested parties in the domain should agree that
the designated manager is the appropriate party."

* "The designated manager must do a satisfactory job of operating the
DNS service for the domain."

* "That is, the actual management of the assigning of domain names,
delegating subdomains and operating nameservers must be done with
technical competence."

* "For any transfer of the designated manager trusteeship from one
organisation to another, the higher-level domain manager (the IANA
in the case of top-level domains) must receive communications from
both the old organisation and the new organisation that assure the
IANA that the transfer in mutually agreed, and that the new
organisation understands its responsibilities."

ICP-1 can be viewed at http://www.icann.org/icp/icp-1.htm
ICP-1: Internet Domain Name System Structure and Delegation (ccTLD
Administration and Delegation)

Of interest from ICP-1:
* "Delegation of a new top level domain requires the completion of a number
of procedures, including the identification of a TLD manager with the
requisite skills and authority to operate the TLD appropriately."

* "Significantly interested parties in the domain should agree that the
proposed TLD manager is the appropriate party."

* "TLD managers are trustees for the delegated domain, and have a duty to
serve the community. The designated manager is the trustee of the TLD for
both the nation, in the case of ccTLDs, and the global Internet community"

* "For transfer of TLD management from one organisation to another, the
higher-level domain manager (the IANA in the case of TLDs), must receive
communications from both the old organisation and the new organisation that
assure the IANA that the transfer is mutually agreed, and that the proposed
new manager understands its responsibilities."

Some Important links
+ Namespace http://www.namespace.org.za
+ ISOC-ZA   http://www.isoc.org.za/
+ Department of Communications
        http://docweb.pwv.gov.za/
+ Government Information
            http://www.polity.org.za/

And finally the submission of Mr Mike Lawrie himself:
The following document is retyped from a paper copy which Mr Lawrie allowed
me to photostat due to problems getting an electronic version to me in the
timeframe concerned. It contained many additions and underlines in pencil
as well as an additional piece of paper with points written on it in
pencil. Any errors in this manual reproduction are mine. Please contact Mr
Mike Lawrie <mlawrie () apies frd ac za> if you desire to have a copy
forwarded to you directly. If you are in a position to, word of your
support would probably be most welcome and appreciated. [imho]

My comments are in {} brackets

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Portfolio Committee on Communications
Comments on the Domain Name Issues in the Electronic Communications and
Transactions Bill.
Mike Lawrie - Administrator of the ZA Domain Name Space
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

I write in my capacity as the person who brought the Internet to South
Africa, who got permission for the country to use the ZA namespace in
November 1990 and who has been the de jure administrator of the ZA
namespace since February 1994.
{In pencil: "Assisted in establishing Internet in .mz .ls .aw .zm .gh .sw
.tz .na NED, BSc Hons Msc"}

The Portfolio Committee needs to be aware of some of the background
regarding the approach taken in the bill with regard to the namespace
issues in Chapter X. This will hopefully influence its deliberations on
this Chapter.

In 1998, at my request, the South African Chapter of the Internet Society
(ISOC-ZA) established a Drafting Committee to produce proposals for a new
administration for the ZA namespace. There was no pressure from any source
other than from myself for a change to the status quo. There had at that
time been absolutely no interest by government in the matter, although the
name of the Director-General of the Department of Communications had been
proposed (with his permission, I understand) and accepted to serve on this
committee. For the record, the D-G did not attend a single meeting, nor
send an alternate during the 3 year life of this committee. The Committee
comprised considerable expertise, indeed the cream of the country's
Internetworkers were involved, and produced an excellent proposal after a
very open and consultative process. By deliberate choice, I did not serve
on the Committee.

During the lifetime of the Drafting Committee, it has emerged that the DoC
was quietly and secretively preparing its own proposal for the
administration of the ZA namespace. There was no consultative process
whatsoever. I was never approached by the Department of Communications for
input from an experienced country domain administrator, which is quite
surprising. It was at my request that I met once with a staff member of the
department, who was clearly lacking in both expertise and understanding of
both Internet issues and domain name issues. The proposal that emerged from
the DoC process showed abysmal ignorance of what domain administration is
about. The proposed costs were horrendous. What I was doing on a voluntary
and unpaid basis was now proposed to be done by a staff of 14 full-time and
3 part-time persons, with a budget of R24,525,000 over three years. This
included an annual salary bill of R4.2million at 1999 rates. [See document
published by the DoC Office of Director-General titled "Establishment of
Domain Name Authority, Updated Final Version, October 1999"]
{unavailable to me}

I find it quite remarkable that the D-G of the Department, with full
knowledge of the process under way through ISOC-ZA, and having allowed his
name to be put forward as an active participant in that process, took an
approach of drawing up through a secretive process an alternative document,
rather than work openly or in co-operation with persons who have the
well-being of the Internet at heart. The Internet has grown to be what it
is by working <em>with</em> others, and not <em>against</em> them.

Fortunately, the outcry arising from this document made the DoC withdraw
it. It is disturbing to think how much was paid to the consultants who
drew it up, and frightening to become aware of the ignorance of the domain
name issue at government level.

There was a Green paper process leading up to the Bill, to which I had the
greatest difficulty in being invited. Apparently I did not "represent" an
"industry group", I was only the administrator of the ZA domain, which did
not appear to count. Eventually I received last-minute permission but by
then had made other commitments so I did not attend. I quote from the
Executive Summary of a document produced by Edward Nathan and Friedland as
a result of the Green Paper process:-

"The administration of the domain names in South Africa has been done to
date by a private person on a monopolistic basis without a regulatory
framework within which to ensure good and non-discriminatory practices.
This is not to say that the system has been discriminatory or not good in
the past, it is simply to say that with the next wave of explosive growth
of the Internet, that we should expect if the barriers to electronic
[commerce] are [to be] successfully removed, a system should be in place
to ensure the required standards. Ultimately, this may require no more
than a policy statement by the government within which a private system
should operate. More study and consultation in this regard is necessary"

As best I can make out, this document was not on general distribution to
the public. I believe I stay in touch with developments on the Internet in
South Africa, yet I received a copy indirectly only in April 2002 when I
became aware of its existence.

There are various implications in the quoted paragraph that can be
challenged, like "the next wave of explosive growth" (there are no such
"explosive waves", this is buzzword stuff), and "barriers to electronic
commerce" in the present domain administration do not exist, both by
admission in the above quotation and by the acceptance of the Internet
community. Fundamentally wrong is the implication that there are such
things as "<em>THE</em> required standards", implying quite incorrectly
that something new has emerged in the way of standards and that the
present system is not coping or not meeting Internet standards in some way
or other. This is very far from the truth on all counts.

The only accurate statements in the quotation are "Ultimately, this may
require no more than a policy statement by the government within which a
private system should operate. More study and consultation in this regard
is necessary". I urge the Portfolio Committee to consider that advice very
carefully, because that advice appears to have been ignored by the DoC.

It is remarkable that the present administrator of the ZA domain space was
not consulted in terms of the "More study and consultation in this regard
is necessary", because indeed that lack of consultation is self-evident in
Chapter X of the Bill, as any Internet expert will attest.

During the drafting of the Bill itself, I was not approached even once by
either the Department or by the drafting team. With due respect to the
drafting team, they appear to have had precious little technical Internet
knowledge amongst them, and they did not (or were not allowed to) seek
expert input which is a great pity indeed. Further it has transpired that
their hands were somewhat tied when writing Chapter X. The drafting team
did make contact after the event, and endeavoured to have suggestions
incorporated into the draft even though their work was officially
completed. This was not particularly successful, very few of these
suggestions appear in the Bill.

Issues that definitely need to be dealt with in regard to the
administration of the ZA namespace (be this from within Parliament or
otherwise) are :-

- more than one person needs to be involved in the decisions of how to deal
with various ZA issues
- there needs to be accountability to the Internet users (and potential
users) of the country.
- there must the no stifling of the ideas of experts in the field of domain
name administration.
- there needs to be a name dispute resolution mechanism that has the power
of law.
- the ZA primary nameserver needs to be moved, because of my personal
situation.

Issues that are "nice to have but not essential" are :-
- there could be some kind of government participation (not control) in the
decisions about the use of the ZA namespace, as is done in the majority of
other countries
- there could be some kind of legal framework to give authority to the
administration of the ZA namespace

I submit that these do not need anything like the proposals of Chapter X of
the ECT bill.

I also submit that the administration of the ZA namespace has very little
if anything to do with communication matters, but it has a great deal to
do with issues that belong under the Department of Trade and Industries,
both for issues of ecommerce and for issues of trademark and other
intellectual property issues. The wrong department is piloting this aspect
of the Bill through Parliament.

Options facing the Portfolio Committee are, in order :-
* excise Chapter X from the Bill - most country domains administration have
little or no legislative backing, and indeed little is needed in South
Africa
* replace Chapter X with nothing more than a policy statement, as suggested
in the Green Paper
* modify Chapter X to allow in the first instance an organisation like
Namespace ZA to administer the ZA namespace under threat of government
take-over if they get it wrong (in whose judgement?)
* in all three options above, legislate (after further advice) a mechanism
for dealing with alternative dispute resolution over namespace issues

In my opinion, it is not an option of the Portfolio Committee to ignore the
leads of other countries, and therefore should desist from attempting to
legislate on Internet matters that require technical skills. Just for one
thing, both GOV.ZA and the PARLIAMENT.GOV.ZA domains are badly broken. One
of the five nameservers for GOV.ZA is setup correctly, and only one of the
two nameservers for PARLIAMENT.GOV.ZA is operational. So members of the
Portfolio Committee should not be surprised if email to
<someone () parliament gov za> does not work. It's been this way for months.
If a key domain such as the Government's very own domain is not working,
why is there a reason to suppose that the government is capable of
maintaining the ZA domain in good order?

In closing, let me point out to those who feel I write this with a vested
interest or chip on my shoulder that this is far from the situation. I want
"out" from the administration of the ZA namespace. I'm at the end of my
career, I'm on pension, I've no empire either to build or sustain. What I
do want to see is a well-run Internet in South Africa, something for which
I had a vision way back in 1988, and still have.

<ends>




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