<nettime> [Fwd: FC: J.Zittrain responds -- ICANN letter to House subcommittee]

[glenn@technologylaw.com (Glenn B. Manishin) (by way of Paul Garrin)]

August 24, 1999

The Honorable Fred Upton
Chairman
Subcommittee on Oversight and Investigations
Committee on Commerce
U.S. House of Representatives
Room 2125, Rayburn House Office Building
Washington, DC 20515-6115

Dear Chairman Upton:

Here are my answers to your followup questions for the record in response
to my testimony before your subcommittee on July 22, 1999, concerning
ICANN and the management of the prevailing Internet domain name and IP
numbering system. 

1. In your opinion, what would be the impact of the failure of ICANN on
the domain name system transition process?  What different scenarios do
you foresee for transition of domain name system management if ICANN were
to fail? 

In the short term, the failure of ICANN would extend the status quo
through a halt to the domain name system transition process; no growth in
the number of open generic top level domains; a continued paralysis in the
evolution of certain critical aspects of the namespace; and the continued
absence-for better or worse-of contractually-enabled substantive policies
such as alternative dispute resolution for domain name challenges. 

Over a longer term, as described in my testimony, plausible alternative
options are these: 

(a) Creation of a "Son of ICANN" to build a new organization improving on
that which ICANN had not done so well.  This strikes me as unlikely,
particularly if the failure were seen as structural, since the interested
parties would doubt a successor organization could do any better. 
Further, any parties who feel disadvantaged as a result of the actions of
ICANN-or its very existence-could perpetually undermine the organization
in hopes that the next incarnation (or the status quo of none) might be
more advantageous. 

(b) An international treaty organization. One could imagine an attempt to
assert management over top-level Internet names and numbers by individual
sovereigns (most likely the United States) or, with sovereigns'
acquiescence, a treaty organization such as the International
Telecommunications Union.  The governments represented through ICANN's
"Government Advisory Committee" (GAC)  have already agreed that the
Internet naming system is a public resource to be managed in the public
interest.  (See, for example, the GAC statement of August 24, 1999, at
<<http://cyber.law.harvard.edu/icann/santiago/archive/GAC-Comminuque-mtg3.h
tml>http://cyber.law.harvard.edu/icann/santiago/archive/GAC-Comminuque-mtg3
.<http://cyber.law.harvard.edu/icann/santiago/archive/GAC-Comminuque-mtg3.h
tml>html>.) Such an approach is directly contrary to the current U.S. 
government policy of transition to non-governmental management, but it is
this policy which would be most called into doubt were ICANN to fail.
Orchestrating the cooperation of a critical mass of non-governmental
system administrators and "mirror" root zone server operators (see my
answer to 2(c), below, for details)  would be delicate, and might
encourage the coordinated (but unincorporated)  Internet engineering
community, along with commercial software developers, to hasten work on
integrating completely different technical architectures for naming. 

(c) Market left to its own devices. In the absence of alternatives (a) and
(b), above, a battle would be fought by existing market players for
control of the current root.  Either through technical or legal
maneuvering, some private party would end up running the root, and it
would likely not be structured as self-consciously intending due process,
checks and balances, and consensus building the way ICANN had been in the
ideal.  (In other words, the winner would be truly "private," rather than
"private, public trust.")  Network Solutions would likely continue to
operate the ..com, .net, and .org top level domains. 

The new "owner" of the existing root would then compete against the
for-profit and non-profit entrepreneurs who are experimenting with
alternative naming schemes.  These schemes would also substitute their
respective proprietary decisionmaking for "public trust" authority in
allocating names to a particular entity or site. 

Internet users and their respective Internet service providers can specify
where they want to get their domain name information and they can choose
any alternative root authority that the market might offer; or they can
choose to adopt entirely separate directory and naming architectures that
work entirely independently of the domain name system.  The problem is
that there is such enormous benefit in having a single repository that it
is difficult to switch out of a system that nearly everyone-and everyone's
software-has inherited.  Because of this, what would likely happen is
either a continued dominance of the legacy system (and the private party
controlling it), or "tipping behavior"  through which a new naming scheme
would predominate, and a different private party would end up with control
of a new root. Either way, Internet naming would thus be run by a private
actor presumably answerable only to itself or its shareholders,
insensitive to market forces to the extent that its dominance is locked in
through everyone's use of the system.  Enforcement of individual
countries' antitrust laws or other ad hoc mechanisms would be the primary
instruments of preventing abuse of this new de facto "essential facility." 

2. Regarding the possible addition of new generic Top Level Domains
("gTLDs"): 

a. What concerns do you think those trademark holders have regarding the
addition of new gTLDs? 

It might be useful to consider the interests of famous mark holders
separately >from other trademark holders. 

Famous mark holders tend to aggressively seek out all uses of their marks
or strings of characters that might be confused with those marks. To many
of them, then, new generic top level domains represent yet new areas that
will have to be secured for their names.  Coca-Cola, for example, might
seek to reserve coke.biz, coke.nom, etc.-and might dislike the prospect of
having to fight for such names against those who register them first,
whether "cybersquatters"  warehousing the names for profit and/or others
who simply claim equal right to have them. 

Holders of nonfamous marks may actually look forward to the introduction
of new generic top level domains, since they would allow easier
coexistence of easy-to-recognize domain names for overlapping brands.  For
example, Erol's Internet could have erols.net, while Erol's supermarket
could have erols.shop.  Non-commercial users and ordinary citizens could
also benefit from this expanded name space. 

Many in the engineering community have pointed out that the use of domain
names as first-order marquee identifiers on the Internet-things one types
into a browser window after seeing them in magazine advertisements or on
the sides of buses-was never fully contemplated by those who designed
them.  They would like to see directory services or other naming schemes
take the place of domain names for marquee purposes, returning domain
names to the more limited role of appearing within online browser links or
email addresses.  Were this to happen, trademark issues wouldn't go away
entirely; rather, they'd shift away from domain names to whatever scheme
served as the new marquee-perhaps privately-held naming systems such as
RealNames or Netscape and Microsoft's "browser keywords."  (Try typing in
words like "government" or "Congress" to a modern browser window, and the
names are mapped to a web site or selection of links by the browser
company, rather than by the domain name system.) 

Until domain names are eclipsed by other schemes-creating new
battlegrounds as the old ones are abandoned-trademark holders represent a
powerful interest in the domain name debates, and one of the principal
reasons that the evolution of the domain name system generally and the
introduction of new top level domains specifically can't, from a practical
standpoint, be thought of as merely technical or ministerial tasks. 


b. How would the addition of new gTLDs increase competition in the
registration and use of domain names? 

Competition "within" open gTLDs

Top level domain registries may be best suited to respective
administration by single entities.  A traditional means of lowering prices
is to simply regulate such entities, which are in monopoly positions with
respect to the registries they maintain.  Thus has Network Solutions's
maintenance of .com, .net, and .org been structured through an ongoing
cooperative agreement with the United States government, which originally
proscribed any charging of consumers for names, later capped consumer name
charges at $35/year, and most recently allows only $9/year to be collected
by the registry from a limited group of registrars-with market rates
determining "add-on" fees charged by those registrars who in turn charge a
fee to consumers wishing to register names. 

Network Solutions is both a registry and registrar under this model,
collecting the $9 registry fee per name per year registered or renewed by
any registrar in .com, .net, and .org (registrars in turn register names
for consumers), and currently collecting $35 per year when used as a
registrar by consumers.  To the extent that such agreements shift the cost
of domain name registration into a competitive environment-customer
service and other components are handled by registrars who vie for
consumer business instead of a single registry-while reducing registry
fees to mere cost recovery, competition is increased. 

Under this model, Network Solutions is also proscribed from subsidizing or
unduly benefiting its registrar arm through its registry services; in
practice, ambiguities in the cooperative agreement seem to have caused
disagreement about what does and doesn't count as a subsidy. It's also
unclear whether Network Solutions claims as its exclusive registrar
customers the millions of entities who registered (and must regularly
renew) names in .com, .net, and .org before the introduction of the shared
registry system and the implementation of the registry/registrar
distinction. 

The cooperative agreement between Network Solutions and the U.S.
Government contemplates that ICANN will take on the U.S. Government's role
in the agreement if it meets certain benchmarks; however, there also
appears to be a thought that competition through new open gTLDs will
lessen or completely eliminate the need for price caps or other oversight
of individual registries. 

Competition through new open gTLDs

The longer-term plan for competition appears to be through the
introduction of new generic top level domains.  The theory is that once
there are plenty of top level domains to choose among, run by different
registries, market competition will minimize registry prices, or at least
converge to market-desired combinations of price and service, however
service might be defined. 

This theory is true to some extent, and new gTLDs seem desirable for a
number of reasons, but there are limits to the competitive benefits to be
expected.  The most important limit is that of domain name portability. 
Someone choosing a new domain name from scratch can shop among all open
TLDs; once the domain name is selected, however, and goodwill is built up
around it, it can be difficult to switch.  The online merchant Amazon.com,
for example, presumably could not lightly abandon its domain name even if
Amazon.biz were readily available. Perhaps initial selection of a domain
name could take into account what promises a registry is willing to make
about the future ("We promise never to charge you more than $30/year for a
name"), but there is already substantial lock-in for existing names, with
contracts that to my knowledge make no such promises. 

Registries might be asked to at least allow for a time period of domain
name forwarding should a consumer registrant wish to switch from one TLD
to another;  such a policy would promote portability of names and
therefore make competition among TLDs more keen.  Presumably ICANN would
be in a position to seek to make such a policy-and enforce it through
contracts with respective registries-but the scope of ICANN's substantive
policymaking power is still untested, and will be determined by an odd
hybrid of its own bylaws, any superseding national laws, and the terms of
its contracts with registries. 

Finally, a drastic increase in the number of gTLDs could render enough so
there is one or more gTLD per entity rather than multiple entities sharing
space under a single gTLD-AT&T, for example, might have www.att instead of
www.att.com. In such a case AT&T (and everyone else) need not be a
registrant "under" a TLD, but could be a holder of a TLD that could manage
the TLD on its own.  My sense of the technical community's view of this is
that a flattening of the domain name hierarchy is difficult from an
engineering standpoint, and that at least in the short term new TLDs
should number at most in the hundreds rather than the thousands or
millions.  However, the introduction of at least some new TLDs under the
traditional registry model would presumably help reduce technical load on
the file that points to registrants within the .com domain, which is by
far the busiest. 


c. Does ICANN presently have the authority to add new gTLDs? 

Questions of legal authority are difficult here, since the system has
evolved without a comprehensive treaty-based, statutory, or contractual
framework.  But the short, literal answer to the question appears to be
"no, not without the concurrence of the United States government." 

gTLDs "exist" under the prevailing system because they are reflected in a
"root zone file" distributed across thirteen "root zone servers" around
the world.  As consumers seek to use domain names to get around the
Internet, their respective internet service providers typically choose how
to "resolve" the name to a unique Internet IP address. Virtually every
internet service provider ultimately consults one of those thirteen root
zone servers about whether a particular gTLD exists, and if so who manages
it. 

The thirteen servers return identical answers because twelve of them
mirror a single "authoritative" root-currently operated by Network
Solutions wholly apart from its duties as registry (and registrar) of
names under .com, .net, and .org.  To my knowledge Network Solutions has
not claimed "ownership" of this authoritative root zone file, nor the
right to make changes to it.  In practice, changes had been made at the
request of Jon Postel/IANA, at times through the somewhat formal but
unincorporated "RFC" processes of the Internet Engineering Task Force,
described in my prior testimony.  More recently, only ministerial changes
to gTLDs have been made to the file, and the October 7, 1998, Amendment 11
to the cooperative agreement between NSI and the Department of Commerce
explicitly provides both that (1) NSI will continue to operate the primary
root server until instructed by the government to transfer it to ICANN
("NewCo") or elsewhere; and that (2) NSI will currently only make changes
to the root with the written authorization of an "authorized USG official"
and that, at some future time, the U.S. government may instruct NSI to
accept ICANN's changes to the root.  (See
<<http://www.networksolutions.com/nsf/agreement/>http://www.networksolution
s.com/nsf/agreement/>.) 

This is consistent with the Department of Commerce's policy "white paper"
of June 5, 1998, "Management of Internet Names and Addresses," 
<<http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm>http://www.ntia
.doc.gov/ntiahome/domainname/6_5_98dns.htm>: 

The new corporation ultimately should have the authority to manage and
perform a specific set of functions related to coordination of the domain
name system, including the authority necessary to [^Ê] oversee policy for
determining the circumstances under which new TLDs are added to the root
system[.]

The November 25, 1998, memorandum of understanding between the U.S.
Department of Commerce and ICANN (see
<<http://www.ntia.doc.gov/ntiahome/domainname/icann-memorandum.htm>http://w
ww.ntia.doc.gov/ntiahome/domainname/icann-memorandum.htm>) contemplates
that the two parties will jointly develop processes for "[o]versight of
the policy for determining the circumstances under which new top level
domains would be added to the root system[,]" and that ultimately this
function will be performed solely by ICANN. 

In practice, then, the major parties in this area seem to agree that the
addition of new gTLDs is something that the U.S. government has the
authority to assign; that it currently is sharing these responsibilities
with ICANN; and that ultimately-but not presently-ICANN is slated to have
the authority to manage the addition of new gTLDs and the custody of the
authoritative root zone file. 

It is noteworthy that some of the twelve mirror root servers might
hypothetically choose to cease mirroring the authoritative root zone file
and provide an alternative file, or that internet service providers or
even their downstream individual customers could seek domain name
resolution from "alternative" roots not within the IANA/USG/NSI/ICANN
chain.  This is unlikely thanks to the lack of interoperability such
decisions would entail, but I know of no legal authority preventing it. 



3. Regarding registration of one of the so-called "seven dirty words" as
part of a domain name: 

a. Should registrars have the right to refuse to register domain names
containing any of these words? 

Registrars' actual legal rights to refuse registration would be defined by
the contracts, if any, by which they enter the registration
business-contracts with the registries in which they seek to register
names, and accreditation contracts from ICANN, as currently implemented in
.com, .net, and .org.  Their rights may also be limited by law as
developed and enforced by sovereigns who can assert jurisdiction over
them.  I do not know of any existing restrictions in either category. 

To some, the ideal of freedom of speech means that registrars ought not to
refuse a request to register a particular name.  To others, free speech
protection means that private entities (including registrars) can choose
to say-or not say-what they like.  In practice, allowing registrars the
"right" to refuse registration (or renewal) of particular names isn't
controversial so long as there are a variety of them-registrars could
individualize their registration policies to allow for differences of
opinion on such issues, and chances would be high that sibling registrars
will be available to register words that others reject. 


b. Should registries have the right to refuse to accept a registration
containing any of these words? 

Registries' legal rights to refuse registration would be defined by the
contracts, if any, by which they were commissioned to undertake their work
by whoever manages the root (see 2(c), above).  Their rights may also be
limited by law as developed and enforced by sovereigns who can assert
jurisdiction over them.  I do not know of any existing restrictions in
either category. 

In my view-and this doesn't represent a legal judgment-registries should
not make any judgments of name suitability anymore than a registry of
deeds should refuse to register property based on a perceived
offensiveness of the title owner's name.  There are many words in many
languages that offend natives;  enforcement of such concerns should, if it
happens at all, be a matter of local law. 

To the extent that a multiplicity of registries come to exist, one can
imagine amongst registries the kind of competition that diminishes
controversy over registrar refusals to register names in a given domain
described in 3(a), above.  Indeed, one could imagine a ".kids" domain for
which certain second-level domains are left unregistered, while anything
goes in ".xxx."  Problems with this approach include (1) the apparent
distaste for it by the Internet administrators and engineers whose support
might be needed to implement it and (2) the fact that Internet content
found objectionable by some is truly found much more within Internet sites
than in the single-string identifiers used to label and find them. 

4. 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? 

I believe so.  As my answer to 2(c) explains, all major parties appear to
agree that the U.S. government has authority over the "root" file that
determines whether there will be .com, .net, and .org, and if so, who will
manage them.  (A separate matter is whether the Department of Commerce has
the authority to act for the U.S. government in these matters after rather
explicit direction >from the President's June 1, 1997 directive on
electronic commerce, but absent specific authorizing legislation.) 

Redirecting the root file to point to a .com, .net, and .org run by a new
entity is not enough.  To effectively recompete these registries, the
Department of Commerce will have to ensure that most of the existing
registry data-for example, what existing names in these domains are
already assigned and to whom-are available for seamless transition to a
new registry operator.  This does not appear to represent a difficult
technical problem if Network Solutions were to cooperate in the
transition.  Absent such cooperation the Department of Commerce might
resort to filing a lawsuit to attempt to compel it, or to less certain
technical means to "route around" an attempt to withhold the data.  If the
latter were to occur, Network Solutions might itself file suit to attempt
to establish its rights against such circumvention. 

I have reviewed Network Solutions's letter of August 11, 1999 to Chairman
Bliley, which describes NSI's legal claims to registry data which, if
upheld in their entirety, would preclude an effective recompetition of the
registries NSI operates.  I am skeptical of NSI's position because (1) the
data in question appears to fall outside the scope of copyright (see Feist
Publications Inc. v.  Rural Telephone Service, Inc., 111 S.Ct. 1282
(1991)) and (2) the data in question-at least that data necessary to
maintain the technical functioning of the registries-is publicly available
and appears to fall outside the scope of trade secret.  To be sure, the
relevant contracts do not speak directly to the issue, except for the
recent Amendment 11 to the original NSI/NSF cooperative agreement-which,
as NSI points out, simply affirms an undetermined status quo. 

A hastily called-for recompetition-and the brinksmanship between the
Department of Commerce and NSI that it might entail-would be a danger to
Internet stability.  The current agreement between the two parties is now
extended through October, 2000; were a recompetition to take place
now-with NSI fully entitled to submit a bid for retention-there would
likely be sufficient time as a technical matter to ensure that whoever was
awarded the new registry contract could effect a transition.  Such a move
might prompt a lawsuit as described above, which could then require
resolution before the recompetition could fully proceed. 

The best way to arrive at fair deal promoting long-term stability-with
attention to the public interest at stake, and with terms going forward
that can incorporate all that has been learned about domain name
management since the original cooperative agreement was signed-may be
through a competitive bid process rather than through a one-on-one
negotiation where the government has not developed a viable alternative to
an agreement with its negotiating partner.  Neither the government nor NSI
should have to settle for any less than what their actual rights are, and
continued uncertainty or lack of resolution about these claims could
impair the settled expectations and competitive parity desired by
additional prospective registries and downstream registrars within .com,
.net, and .org.  Even a "leisurely" recompetition would, of course, entail
administrative, technical, and legal effort among all the parties that is
bypassed by longer-term agreement between the Department of Commerce (and
perhaps later, ICANN) and NSI. 


5. 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? 

Name disputes will, in many cases, be less a moral issue than one of
simple baseline "ownership": under some prevailing law, is the challenger
entitled to use of the name even if the name holder was first to register
it?  A uniform dispute resolution policy may make sense generally in a
space where disputants can be far from each other both physically and
jurisdictionally, and where the commerce affected is global since the
domain name at issue is available globally.  But the devil will be in the
details: what "law" shall the dispute resolvers apply?  Wherever arguably
applicable substantive law can enhance a party's rights, the advantaged
party will seek to bypass dispute resolution procedures.  A mandatory
dispute resolution policy (coupled with a waiver of traditional right and
remedies) written into domain name contracts could unilaterally limit the
rights of the initial domain name holder-who, since the policy is uniform,
would have little choice about entering into the contract short of
abandoning the name registration to begin with. 

What scant data there are suggests that relatively few domain name
disputes-in proportion to the millions of names registered-actually
proceed to litigation.  This may be a fix in search of a problem, or one
derived from a legacy problem:  initial registrations in gTLDs before the
commercial potential of the Net was fully appreciated by those holding
trademarks.  The real challenge will be to avoid an "Oklahoma land rush"
as new gTLDs are introduced; IBM, for example, might seek privileged
registration as "ibm.biz" without having to hope its request for
registration is the first one received were the .biz TLD introduced. 

In addition to the trademark and business communities, one might think
that uniform dispute resolution-were it more accessible and less expensive
than litigation-would assist individual domain name owners in arguing
their own causes for retention of challenged names they hold. This, again,
would depend on the substantive "law" used within the ADR procedure to
settle the dispute. 

Finally, the registrar and registry communities appear eager to implement
uniform dispute resolution policies so as not to be entangled in domain
name disputes.  However, one could imagine fairly uniform substantive law
by which such entities adopt a basic policy-first-come, first-served-and
then agree to reassign names on the basis of judicial decrees-a kind of
"quasi in rem"  proceeding.  To be sure, certainly at the registrar level,
if there is to be a dispute resolution policy at all it only makes sense
as a uniform one;  otherwise, domain name registrants will tend to "race
to the bottom" to register names with the registrar offering the most
generous terms (or no policy at all). 


6. There has been much discussion about the role of the Governmental
Advisory Committee ("GAC") to ICANN.  Regarding the GAC: 

a. Has the GAC taken any actions to date that are inconsistent with its
official role? 

None of which I am aware.  The ICANN bylaws charter the GAC to "^Ê
consider and provide advice on the activities of the Corporation as they
relate to concerns of governments, particularly matters where there may be
an interaction between the Corporation's policies and various laws, and
international agreements."  (See
<<http://www.icann.org/general/bylaws.htm>http://www.icann.org/general/byla
ws.<http://www.icann.org/general/bylaws.htm>htm>.)  Its chief actions
appear to have been holding both closed and open discussions, certifying
who is and is not a member of the GAC, and generating communiqués about
its collective views on particular domain name issues. 

b. Is the GAC subject to its own rules or to the rules of ICANN? 

ICANN's bylaws, once establishing that there is to be a GAC and providing
for its membership criteria and advisory relationship to ICANN, suggest
that the GAC makes its own rules to govern its internal actions, including
the selection of its successive chairs.  Since the GAC exists under the
ICANN bylaws, it technically could be eliminated or altered in character
by an amendment to those bylaws; therefore it might literally be subject
to rules ICANN could seek to impose.  It has no explicit power over ICANN
other than as a recognized resource for information and advice, but as a
matter of realpolitik it is not difficult to imagine that the governments
of the world expressing their views collectively through the GAC would be
difficult for ICANN-new, and at the end of the day, weak-to ignore. 

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? 

I believe that the current bylaws adequately limit the GAC to offering
advice and recommendations, which the Board may adopt at its own
discretion. ICANN bylaws [Article VII Section 3(a)] state that the
Governmental Advisory Committee should consider and provide advice on the
activities of the Corporation as they relate to concerns of governments,
particularly matters where there may be an interaction between the
Corporation's policies and various laws, and international agreements. The
Board will notify the chairman of the Governmental Advisory Committee of
any proposal for which it seeks comments under Article III, Section 3(b)
(policy changes that would substantially affect the operation of the
Internet) and will consider any response to that notification prior to
taking action. 

Governments not only have responsibility for protecting their citizens who
use the Internet, but they are Internet users themselves.  However,
ICANN's bylaws (Article V Section 5) prohibit any government official from
sitting on ICANN's Board of Directors.  An advisory committee, which
serves as a conduit for the expression of governmental interests, seems a
reasonable compromise.  To eliminate the GAC would simply be to shift
governmental pressures on ICANN sub rosa.  Interestingly, the only way to
truly limit the GAC's de facto influence-since its de jure power is
technically limited to producing advice that ICANN is free to ignore-would
be to cement ICANN's own authority and independence, something many are
chary about doing until ICANN has more of a track record.  Limiting
government influence to that which takes place through the structure of
the ICANN bylaws is thus, in practicality, a matter of voluntary
abstention by those legislatures and other government authorities in a
position to compel or at least affect ICANN's behavior on the basis of
something as simple as a phone call. 

The U.S. government has a distinct role in relationship to ICANN both
because ICANN is headquartered in the United States and because the
authority underlying the entire "privatization" of domain name and IP
number management has been exercised by the United States.  Alone among
sovereigns and apart from a simple attempt to exercise raw jurisdiction
over ICANN's activities, the United States has an additional formal route
by which to express views and apply pressure to ICANN-whatever legitimacy
ICANN has at this time flows from the formal recognition and subsequent
memorandum of understanding entered into with the U.S. Department of
Commerce.  The circumstances under which this route might be used are,
presumably, to ensure that ICANN's structures remain free >from capture,
rather than to push for or against specific substantive policies. 


7. If ICANN ultimately does not charge its now-suspended $1 per domain
name fee, how should ICANN fund its operation? 

ICANN (and IANA, such as it is; it is not clear if IANA, never formally
incorporated, has been wholly subsumed into ICANN) provides coordination
services to different network constituencies and these are also potential
sources for revenue.  ICANN allocates Internet Protocol addresses to the
three current regional Internet registries (RIRs), who charge fees when
they assign IP addresses to Internet access providers. A portion of these
fees could be paid to cover ICANN's expenses. ICANN's supporting
organizations (SOs) and the at-large membership could charge membership
fees to cover the expenses of coordinating protocol parameters and
providing membership services. 

Concern over undue taxation might be alleviated by (1) an explicit cap on
the total amount ICANN will, in fact, collect in a given year, limited to
cost recovery; should a surplus be collected, ICANN's subsequent fees
would be adjusted downward; (2) flat fees rather than per-name taxes. 
ICANN could simply charge registrars a yearly fee based on some metric
calibrated to ability to pay.  Individual country-code TLDs, were they to
enter into memoranda of understanding with ICANN, might also provide for
some contribution to the organization. 

Any structure that eliminates the necessity for a per-name per-year fee
may be helpful in broadening the possibilties for experimentation with
different kinds of registry and registrar fees.  As I expressed in my
spoken testimony, there is no particular economic reason why Internet
users who register a name and then "leave it alone" should have to pay
recurring yearly fees to anyone. 


*  *  *

        
Please don't hesitate to contact me if you have additional questions.



                                                                
Sincerely,


                                                               
Jonathan
Zittrain






Jon Zittrain
Harvard Law School
Executive Director, Berkman Center for Internet & Society
http://cyber.law.harvard.edu
Lecturer on Law
http://cyber.law.harvard.edu/is98
http://cyber.law.harvard.edu/msdoj
+ 1 617 495 4643
+ 1 617 495 7641 (fax)



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