These are the answers to questions we submitted to the House of
Representatives today, as a follow-up to the July 22, 1999
hearings on ICANN. Jamie
James Love
Director
Consumer Project on Technology
P.O. Box 19367
Washington, DC 20036
http://www.cptech.org
September 10, 1999
Fred Upton
Chair
Subcommittee on Oversight and Investigations
Committee on Commerce
US House of Representatives 20515-6115
Dear Chairman Upton:
The following are my answers to the subcommittee questions
regarding ICANN and the privatization of the management of the
Internet domain name system.
1. Regarding the possible addition of new generic Top Level
Domains ("gTLDs"):
a. What concerns do you think trademark holders have regarding
the addition of new gTLDs?
Trademark owners aggressively seek to protect the use of
names, including for new gTLDs. IBM probably wants to
prevent anyone but IBM from using IBM.web or other possible
gTLDs that might be created. However, trademark owner
concerns must be balanced by other public interest
considerations. For example, in many cases there are lots
of different firms or organizations that use the same name,
and the existence of additional gTLDs will permit more than
one organization to use the name. This will often be
appropriate, as consumers will have opportunities to tell
the difference between different firms who use the same
name, with different gTLDs. For example, the journal Nature
owns nature.com. The Nature Company owns natureco.com. I
don't think Nature, the journal, would be harmed if the
Nature Company could buy nature.web or nature.biz or any
other gTLD using Nature. There are countless examples like
this. Indeed, in our view, any proposals to add new gTLDs
should seek to expand the name space available to firms,
organizations and individuals, and discourage hoarding by
firms. I might add that there are already technologies
under development to make it easier for the public to find
firms by their true names, regardless of their domain name,
further reducing confusion among like sounding domain names.
It is also important to protect the right of parody and free
speech in the allocation of domain names, and to protect the
rights of individuals and non-commercial organizations.
b. How would the addition of new gTLDs increase competition in
the registration and use of domain names?
New gTLDs should be created. However, governments should
decide now who will "own" a gTLD. It is our view that the
gTLD is a global commons, and should not become the property
of any private party. If the gTLD is a global commons, it
would be appropriate to create an international governance
structure to manage the resource for the benefit of the
public.
c. Does ICANN presently have the authority to add new gTLDs?
We are unsure if ICANN has the legal authority to do
anything with regard to gTLDs.
2. Regarding the registration of one of the so-called "several
dirty words" as part of a domain:
a. Should registrars have the right to refuse to register
domain names containing any of these words?
No.
b. Should registries have the right to refuse to accept a
registion containing any of these words?
No.
3. Does the department of Commerce have the authority to
recompete the .com, .net and .org registries? How would
such recompetition affect the Internet's stability and
competition for domain name registration and related
services?
We assume the Department of Commerce does has the authority
to recompete the .com, .net and .org registries, and we urge
the Department of Commerce to do so as soon as possible.
The recompetition should enhance the Internet's stability,
and indeed, the purpose of the recompetition should be to
create a system that cannot be held hostage to a private
body. This may require more redundancy, posting of bonds,
backup of key data with trusted third parties, changes of
financial incentives or other management measures.
4. Regarding domain name disputes among legitimate trademark
holders, is this an appropriate area of policy for ICANN to
consider? Are such policies needed by the entire Internet
community, and not merely by the trademark or business
community?
As presently envisioned, ICANN should not be expected to
undertake policy making on trademark disputes. ICANN is an
unelected body without any particular competence or
authority in the field of trademark disputes.
Trademarks are for the benefit of the public, and protection
of legitimate trademark rights protect consumers. However,
trademark owners have commercial interests that are not
identical to the consumer or public interest in trademarks.
For example, trademark owners sometimes try to assert rights
that would be anticompetitive or that would harm free
speech. So far both ICANN and the World Intellectual
Property Organization (WIPO) have demonstrated too much
concern for the rights of trademark owners and too little
concern for the public interest in competition and free
speech.
5. There has been much discussion about the role of the
Government Advisory Committee ("GAC") to ICANN. Regarding
the GAC:
a. Has the GAC taken any actions to date that are inconsistent
with its official role?
Yes. The GAC does not operate in a transparent manner, and
has excluded the public from its deliberations.
b. Is the GAC subject to its own rules or the rules of ICANN?
The GAC seems to operate without any rules at all.
c. What reforms to the GAC, if any, should be made to ensure
that it will act only as an advisory body to ICANN and not
as a policy-making body?
The problems with the GAC are part of more general problems
with the ICANN. The entire enterprise operates outside of
rules that would normally protect the public or provide
accountability. Both ICANN and the GAC should be subject
to measures comparable to the US laws on open records, open
meetings, conflicts of interest, public notice, and other
public accountability provisions.
6. If ICANN ultimately does not charge its now-suspended $1 per
domain fee, how should ICANN fund its operation?
ICANN should not be permitted to collect mandatory fees or
taxes on domain registrations unless ICANN is democratically
accountable to domain owners, or is accountable to
democratically elected governments. At very minimum, there
should be legally binding limits on use of this money by
ICANN. ICANN should not be able to use these fees or taxes
to do anything permitted by the non-profit laws of the State
of California -- this is far too broad. As a practical
matter, ICANN has many other mechanisms to fund its
operations, if it gains control over the power to grant
gTLDs, it could auction off the rights to some gTLDs to the
top bidders, for example, or even auction off the rights to
use slected popular names. But any of these schemes raise
the same issues. Why would all of these resources be given
to a private unelected and unaccountable body in the first
place? And, how big of a budget is justified for such a
modest technical role by ICANN? Do we really need a huge
bureaucracy with $300,000 or more salaried officials to
carry out ICANN's mission? And who should make these
decisions? The unelected ICANN board of directors? The
small number of commerce firms that will dominate the
stakeholder board allocations?
In general, we think governments should create a special sui
generis multinational agreement to manage global DNS
resources. A group like ICANN could then function under a
charter this is based upon the multinational agreement,
subject to oversight and accountability, including financial
accountability.
Sincerely,
James Love
Director
Consumer Project on Technology
--
James Love, Director, Consumer Project on Technology
I can be reached at [EMAIL PROTECTED], by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org
