ruling the root presentation
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Ruling the Root
May, 1 2013
Vanessa Beaton, Lisa Danay, Nir Levin,
Ilana Neck
Presentation Outline
Introduction to the Root
Connections to Global Technology Course Themes
Part I
Part II
Part III
Jeopardy
Acronyms
ARPA: Advanced Project Research Administration
gTLD-MoU: generic Top Level Domain - Memorandum of Understanding
IETF: Internet Engineering Task Force
IAB: Internet Activities Board
IAHC: International Ad Hoc Committee
IANA: Internet Assigned Numbers Authority
ISOC: Internet Society
NS: Network Solutions
NSF: National Science Foundation
NTIA: National Telecommunications Information Association
ICANN: Internet Corporation for Assigned Names and Numbers
WIPO: World Intellectual Property Organization
CORE: Council of Registrars.
Introduction
How do we understand and what are the controversies related to the naming and addressing of computers on the internet?
Policy
Governance
Privacy
Introduction Cont’
Part I: The Root as Resource
Name and Address Protocals
A set of technical functions
Top level domain names (TLD’s) must insure that IP addresses are unique to each device communicating on the internet
Why is this Function Important?
Cannot have a duplicity of IP addresses or domain names
Facilitates a discussion of who should have what degree of control
Before the “White Paper”
Before 1998: Root server was controlled by a government contracted company called Network Solutions Inc,
Name and addressing protocols was under contract to US Military and National Science Foundation
The “White Paper”
In 1998, in response to these growing concerns the US government released policy document
Interesting choice was made control over policy belongs to private stakeholders
Internet posed new organizational concerns
The internet posed a new set of needs
Distinction was drawn between an “industrial society” and an “information society” that the internet was creating
For and Against this Approach
The suggestion was that the internet was fundamentally different
FOR: The internet needs a different organizational structure that the bureaucratic approach could not accommodate
AGAINST: That this is the creation of a hugely important jurisdiction and its being completed outside of the scope of the constitution.
Reston Virginia 1998
Pivotal start to creation of internet governance policy
Informal: no credentials required
Not the end result – but seen as a constitutional moment, creation of a social contract involving many different types of stakeholders
“Governance”
There is fundamental issue created between the intersection of technical management and regulatory control
Two conflicting definitions of governance
Narrow Interpretation
Technical interpretation involving only a system to organize managing root functions
Broad Interpretation
Broader scope of control including
Surveillance: root as a single point of surveillance,
Public Policy: inappropriate implementation of public policy
Leverage for personal gain: Including setting prohibitively high fees or exchanging the creation of certain top level domains in for international underhanded deals
Content Regulation: Controlling what content goes where
Example: Content Regulation:
Notions of Free Speech
For example the .xxx or .kids domain names
Global power to decide what is xxx or kid friendly
ICANN on Governance
ICANN attempted to distance themselves from the broad definition of governance – rather articulating is as technical management
ICANN governs “the plumbing not the people”
Reality
The TWO are inextricably linked – the requirement of centralization of control does create potential for the intrusion of politics and policy control
Unique Values
The primary issue is the naming and address protocols
This requires the assignment of unique names and number
CoordinationCoordinating this involves 2 Steps
Defining the space
Space representing a range of values determined as the basis for identifiers
Important because –uniformity allows computers to process addresses
Assignment of unique values
This process has three important layers
1. Techincal
2. Economic
3. Policy
3 LayersTechnical
There is the technical requirement that they be singular and not duplicative
Economic
Addresses are a finite resource – needs to allocate appropriately to insure the resource isn’t wasted
Supply and demand
Policy
If IP addresses are semantically meaningful, a process needs to be defined to resolve competing claims over the resource
Example: For example France
The Root and Institutional
Change – Analytic Framework Internet names and numbers are resources
Internet governance is the institutionalization of those resource spaces
Creation of a property right
Formation of a Property Right
New resource is created or discovered and conflicts arise among individuals attempting to appropriate the value
Affected community must establish rules governing the economic exploitation of the resource
Process Divided into 3 parts
Endowment – development of new demand conditions that lend substantial value to a resource
Appropriation – refers to attempts by private actors to exploit the resource or establish claims to parts of it
Institutionalization - working out a set of rules or rights definitions that resolve the conflicts and provide a settled (if not fair or efficient) basis for exploitation of the resource.
Endowment
Technological development
Commercialization of technology creates resources internal to the system
“unnatural resources”
Need to be shared
Endowment and the Internet
Development of the internet did create a new resource with substantial value
Root server – acquired commercial value as global locater of servers
Root had property control: Could create new TLDs and to decide who controls the registries
Appropriation
Competition for access will intensify
Institutionalization becomes important: Especially when the resource space created requires sharing or coordination to be used effectively
Institutionalization (Institutional Change)
the development of the internet throughout these stages created a need for institutional change
New technological system did not readily fit into existing resource models
Common Pool Resources
common pool resources :
Unowned, these resources are open to appropriation by anyone
Under these conditions, in the best interest of entities to consume as much as possible, because what they do not consume, other will
this leads to exhaustion of resources and repetitive investment
Institutionalization Causes
Network Solutions precipitated the internet becoming a common pool resource.
Charged small and often unenforced fees
Too costly to discriminate among the thousands of applicants for names
First come first serve leads to the deterioration of the pool resource
Internet and Institutional Change
International institutions often undergo change by comprehensive collective action by nation states
Internet name and address spaces took a different pattern for change
A new private organization was created that would bring together various stakeholder to formulate “consensus policies.
Part II: The Story of the Root
The history reveals: certain institutions and people played a fundamental role in the initial design; there were many different stakeholders and growth, economics and politics have all played a role.
Questions
Who was given authority of root in the first place?
Who owns the Internet and has the right to decide how many and what domain names will exist in the root?
Who has the authority to adjudicate conflicts at the second level over names that competing parties wish to own?
What are implications of authority?
A Timeline in Brief1973:
DARPA1975- 77:
TCPs
1977-81: Forming IPs
1980s: Expansion
1989: Coordination
1988: IANA
1981-91 US Military
1991: Commercial
Traffic
1990-95: www.
1995: Charging for
registrations1995-97: Court PR Conflicts
1994-96: 3 parties
claimed root
1997: gTLD-MoU 1998:
Green Paper
Commercial Influence
Chapter 5: Growing the Root, establishing a ‘Ménage et trois’
What does history tell us about governance and policy?
The internet is global in scope the institutionalization was not organized through nation-states, but it exists within our international system and politicians have had a large role over the years.
The role of one man: Postel
Informal collaboration between:
Internet technical community
Civilian, Federal and government Agencies
US Defence Department
Chapter 5: Growing the RootCont’
1993: Private Sector Governance 1993: US Government View
Chapter 6: Appropriating the
Root: Property Rights ConflictsWho really has authority and legitimacy?
Property rights in early context of a common pool resource
When there is no one with legitimate authority how are conflicts dealt with?
There were cracks with growth and 2 catalysts to conflicts:
Trademark protection and second level domain name registration
Top level domain name assignments
To be at the top of DNS hierarchy, needed to control the root
Chapter 7: The Root in Play,
Domain Name Wars and Authority
The institutional crisis: the symptoms of the crisis were a result of no clear policy authority
Struggles, intervention and control culminating in the Green Paper, which we will touch on more later
A battle of semantics:
A public resource subject to the public trust OR a vehicle for possession OR vying for international recognition?
In Sum
Internet growth created resource
Domain name space as common pool resource
3 barriers to resolving property rights conflicts
No established, formal organization with authority
Attempts to defines property rights in domain names caused conflicts over distribution of wealth
Contracting proved to be difficult because of heterogeneity of groups involved.
Chapters 8-10
Chapter 8: Continuation of the historical narrative of the Root– the creation of ICANN
Chapter 9: The Main Issues that the New Regime dealt with in his first two years
Chapter 10: (Issues and Themes) Beginning of the Theoretical section of the book – ICANN as Global Regulatory Regime and Policy's questions
In the context of our class: the main focus of this section is Internet Governance , (connection between Internet Governance and IP )
Policy issues: we will see that the debates and disputes between the different parties involved difficult policy questions.
Chapter 8 : Institutionalizing the
Root :The Formation of ICANNInstitutionalizing - parties involved in the exploitation of a resource adopt group rules and customs regarding its allocation and use
rocky road to effective coalition:
1. The traditional notion - common will to internet community.
2. the 1990's notion - new heterogeneous interests (Internet Technical Community; Research & Education networking Organizations; Trademark & IP Interests; Large Telecommunications; Local & Regional Internet Service Providers… etc _)
From Green Paper to White Paper
US Oriented : Under the Green paper - DNS privatization would have taken place in a US legal and institutional framework.
The groups that opposed the green paper: the US took no heed of the international character of the Internet.
Furthermore: they saw it as an intrusive government intervention in the affairs of what had been a self-governing community and rejects the authority of the U.S. government.
Fighting the Green Paper – Main
Groups
include prospective registrars that were located in Australia and Europe.
an international network composed of members of the technical community, prospective registrars, and intergovernmental organizations.
Fighting the Green Paper – Main
GroupsThe EC’s:
“The current U.S. proposals could, in the name of the globalisation and privatisation of the Internet, consolidate permanent U.S. jurisdiction over the Internet as a whole, including dispute resolution and trademarks used on the Internet.""
Assembling the 'Dominant
Coalition'organized business lobbying groups spearheaded the formation of a dominant coalition.
The key vehicle for organizing business interests was the Global Internet Project (GIP).
The groups mission : to avoid national old regulatory on the internet and to apply new international and non-governmental approaches "that will be flexible enough to keep pace with the rapid evolution of technology and the marketplace"
Key rolls in GIP – IBM executives (includes some with strong connections to Clinton administration)
Behind the scenes: negotiations between the different groups (include US government).
The White paper - Moving Towards Private
Internet Governance (June 1998)
The Clinton administration releases his final plan:
1. No new TLDs would be authorized.
2. No competing registries would be recognized.
3. No binding decisions about the structure or composition of the new corporation's board would be made.
The White paper - Moving Towards Private
Internet Governance (June 1998)
Instead:
1. The commerce department announced its intention "to recognize, by entering into agreement with and to seek international support for.." new not-for-profit corporation to administer policy for the Internet name and address system.
2. The department would simply wait for "private sector stakeholders" to form a corporation suitable for its recognition.
3. The new corporation should have these characteristics: it's should be headquartered in the United States. Its board of directors should he "internationally representative" and balanced to equitably represent various stakeholders.
4. Government officials should not be allowed on the board!
The White paper - Policy issues
The white paper calling to the new corporation to revise its agreements with Network Solutions (Registry) to "take actions to promote competition," - opening up the generic top-level domains to competing registrars. (controlled .com, .net)
The globally dominant registry would also be required to "recognize the role of the new corporation to establish and implement DNS policy" Regarding domain name disputes and trademark protection.
The White paper led to optimistic spirit - almost all of the main parties were satisfied (EC, gTLD-MoU, GIP)
The International Forum on the White
Paper (IFWP).
Incorporation workshop's that took place all over the world that includes almost all of the major parties involves.
IANA refuses to participate in the international forum, suggesting their own draft - public benefit corporation (structure typically used for educational and charitable organizations.)
The International Forum comes with alternative proposal : nonprofit, membership organization managed and controlled by an elected board representing various interest groups.
The perception: the participants in the new organization would serve not because they were altruistic, but in order to advance their business, professional, or personal interests;
The Creation of ICANN
2 different process that are taking place at same time – and then…
Pro - IANA members of the steering committee withdrew their support for IFWP in order to allow IANA to take charge of the incorporation process.
The International Forum breaks down - IANA became the undisputed focal point of the process.
After meetings between IANA and Network Solutions (Registry top level domain contractor) they released draft for Internet Corporation for Assigned Names and Numbers (ICANN).
The White Paper Failure
The White Paper fail to facilitate open, private sector collective action!
Key bargaining parties had not even come to agreement on a common negotiating arena (IFWP vs. IANA).
the The Internet's "constitutional convention" had been reduced to two and not in an open process government contractors
- the board members of ICANN were eleceted by IANA's people
End of story..
5 different proposals to US Commerce Department .
The Commerce Department choose the ICANN (former IANA) proposal but acknowledge the main critics of ICANN: Especially the composition of the interim board and its method of selection (no transperncy)
The Commerce Department officially recognized ICANN as the White Paper's private sector, not-for-profit entity on February 26, 1999.
Chapter 9: The New Regime
First two years: working with the U.S Department of Commerce to transform administration of the DNS root into the platform for contract-based governance of the Internet.
The new regime defined and distributed property rights in the domain name space and imposed economic regulation on the domain name industry.
The property system of ICANN - highly regulated and conservative one, analogous in many respects to broadcast licensing in the United States
The New Regime : The main
issues1. Dealing with Network Solutions' registry monopoly: transforming.com, .net, and org into shared domains , though Network Solutions succeeded in retaining a long-term property right over the .com registry.
How it goes? They created shared registration system (SRS) that would allow multiple, competing registrars to sell names in .com, .net, and .org on a retail basis.
ICANN issued a set of regulations that would be used to accredit any company that wanted to register domain names in the Network Solutions top-level domains.
ICANN accredited five registrars to participate in the "testbed" phase of the shared registry.
Who ?Dominant coalition members who contributed start – up money to ICANN
The New Regime : The main
issuesThe results:
1. Domain name Prices went down (It decreased the price of many .com registrations)
2. ICANN got control of over than 70 % of the Domain name market, and, as a result- use it as a funding source to sustain its own activities.
The New Regime : The main
issues2. Trademarks & IP: trademark protection became one of the major determinants of the contractual features of registering a domain name, of policies regarding access to information about domain name registrants, and of policies governing the creation of new top-level domains.
To ICANN and the Commerce Department, protecting trademark holders was the second-highest priority after introducing competition in the .com space.
ICANN's most significant accomplishment : ICANN implemented trademark dispute resolution regime. - Uniform Dispute Resolution Policy (UDRP) which every registrar of domain names bound to as a condition of accreditation. (The UDRP procedure allows any person, anywhere in the world, who believes that a domain name registration infringes his trademark right, to challenge a registration.) The UDRP is arguably.
The New Regime : The main
issuesInternational : National governments and intergovernmental organizations used a limited role within ICANN's structure to assert rights over the delegation and assignment of country codes, names of geographic and urban places, and names for international organizations.
The DNS Root: The U.S. government retained residual authority over the DNS root. Instead of giving up that authority after two years, as originally contemplated, the government has held on to it indefinitely. (property issues)
New Top Level Domains (2000): .biz , .info , .pro , .name , .museum .
Rejection of TLD devoted to sex (.sex, .xxx) and children (.kids)
Chapter 10 :ICANN as Global
Regulatory Regime What Is ICANN ?
Is it Is it a standards organization? regulator? policymaker? private or governmental?
Mueller's definition:
"international regime…., established by states to handle governance or regulatory problems that span national boundaries".
Chapter 10 : Theoretical
Justification - FederalismThe fundamental problem of Internet law and governance: the democratic nation-state based on the control of physical territory, while cyberspace an arena for human interaction in which location doesn't matter much.
A single global government is an unattractive solution to this problem – so, according to the legal scholars David Johnson and David Post - The solution is concept of federalism.
Federalism structure breaks down the collective action problem into smaller units but maintains some coordination among the parts.
Chapter 10 : Theoretical
Justification - FederalismWhat should be the collective unit?
According to Johnson & Post - decision-making authority over parts of the online world should be allocated to people who are "most affected" by the decisions.
Ideally, the root administrator should implement only those policies that reflect the broadest consensus among affected stakeholders.
rejection of democratic methods of governance (no sovereignty)
Critique of the Theory
Federalism does not describe how ICANN actually operates: the political bargains that created ICANN were struck by parties unsympathetic (to say the least)
ICANN has monopoly control of an essential resource-the root.
Control of the DNS root gives it substantial power over all top-level domain name registries, and through them it can control the domain name industry as a whole.
So what is ICANN?
Mueller suggests that ICANN is a new international regime formed around a global shared resource.
ICANN is not primarily concerned with technical coordination or standards-setting organization – it connects the need for technical coordination to regulation of the industry built around the resources it manages.
The Main Policy areas
Rights to Names:
ICANN defines and enforces property rights in names :
1. Recognition and protection of various kinds of intellectual property claims
2. resolution of disputes based on these claims (via UDRP)
Regulation of Domain Name Supply Industry
Forces Affecting ICANN's Future:
(the most interesting)
Multilingual domain names are extremely popular with the large majority of the world's Internet users who are not native English readers (as we talked yesterday).
But – it will require major changes in the DNS protocol.
IPV6 – what if it won't get acceptance?
Part III: Issues and Themes
Chapter 11: Global Rights to
Names
a Website by any Other Name…
During the explosion of domain name registrations under .com,
many business people and intellectual property lawyers became
convinced that domain names possessed a remarkable power to
attract users and establish a global identity in cyberspace. This in
return, provoked an effort to make domain names a 'controlled
vocabulary'.
Expanding Trademark Rights
Throughout the domain name controversies (WIPO & ICANN…), almost
all sides of the dispute have agreed upon the principle that new laws or
policies should neither expand nor diminish traditional intellectual
property rights.
Though, it quickly became as fiction…
Mechanized Rights
In the domain name space, rights are established and
defended not through ex-post facto litigation that applies a
legal standard to a particular situation, but by preemptive
regulation using techniques that protect name rights on an
ex-ante basis by hardwiring certain kinds of protection into
the technical system.
Example
The clearest examples of preemptive regulation are name
exclusions as well as the refusal to permit the creation of new
TLD's.
Another form is procedures regulating the initial assignment of
names in new top-level domains ("sunrise" procedures). For
example, give trademark owners privileged access to domain name
registrations in the opening phase of new top-level domains. This is a
completely new kind of trademark right; such privileges over the
adoption of names by third parties have never existed before.
So what’s the problem?
Limitations on the ownership of words and names meant to
protect freedom of speech and fair use can easily be
squashed in a regime based on technical exclusivities.
Expanding Surveillance Rights
Under traditional trademark practice, the owner of a mark is
responsible for all policing and monitoring activity and costs.
However, the creation of an institutional regime based on control of
the DNS root has made it possible for intellectual property interests
to claim new and expansive rights of surveillance over the adoption
of names by users. The vehicle for these new rights is the WHOIS
database.
New Rights in Names
With the release of the Interim Report of WIPO's second domain
name proceeding (WIPO 2001), several new types of names were
excluded such as names of international organizations,
nonproprietary pharmaceutical names, geographical indicators,
country codes, personal names, and trade names. This de-facto
created new rights in names.
Free Expression vs. Controlled Vocabulary
Which approach to domain names-
coordinated free expression or controlled
vocabulary-is better suited to the internet?
Muller argues that the DNS is a system of coordinated free
expression.
Example
For instance, the assumption of Controlled vocabulary
advocates that users who type in the domain name of a
company and find something they did not expect (say, a
protest site rather than the company) will not be smart enough
to look elsewhere. They will become completely diverted and
lost to the company forever. This notion is inaccurate, since it is
like saying that someone who has incorrectly dialed a
telephone number will not correct the error and redial.
Chapter 12: Property Rights and Institutional Change
There is a disjunction between the capabilities of the technical
system and the behavior of the new institution. Although
millions of new top level domains are technically feasible, the
technology is limited by rules and procedures imposed by a
central authority.
How societies could settle upon and
retain institutional forms that were
inefficient and even destructive?
Douglass North (American economist) suggested that a
society can get locked into a dysfunctional institutional
framework when the rules reward people and organizations for
acting in ways that perpetuate its inefficiencies. This "positive
feedback" can explain why "natural selection" and competition
don't eliminate inefficient institutions.
In the case of domain names, we can spell out the stages as follows:
As the Internet was commercialized, the availability of only one global commercial top-level domain gave second-level domain names under.com a special value as an economic resource.
That special value stimulated speculative, defensive, and abusive registrations.
This, in turn, provoked those with preexisting rights in names to lobby politically against further expansion of the name space.
Failure to expand the name space further enhanced the value and power of names in .com. This fueled more speculation, more politicization of the DNS, and continued the cycle.
The value and dominance of .com was enhanced by opening it up to multiple, competing registrars. The lower price and more active marketing of .com names increased speculation.
The Internet governance process could not get large numbers of new TLDs past the trademark interests. on the other hand, it could not avoid creating some new TLDs because of the demands of potential entrants. So it opened up a small number of new TLDs.
With that restrictive policy in place, trademark holders will rush to register their existing .com names in the new generic TLDs to avoid any competition with their .com holdings. The mad desire to protect existing names also magnifies the opportunity for speculation.
The Result
Stability= all change is guilty until proven
innocent
Chapter 13: The Taming of The Net
Since the mid-1990s, the Internet has had a revolutionary
impact on culture and commerce. At the beginning, many
believed that the internet was a kind of Garden of Eden
exempt from the corruption of worldly institutions.
Now, of course, the world is starting to close in on cyberspace.
The institutionalization of the Internet is taking place on a
variety of fronts. But the administration of the Internet's name
and address root was the first to produce a global solution.
It seems that institutionalization under ICANN means that the
Internet's role as a site of radical business and technology
innovation, and its status as a revolutionary force that disrupts
existing social and regulatory regimes, is coming to an end.
But no doubt there are other technologies and systems
hatching somewhere, ready to take the world by surprise.
JEOPARDY!
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History Theory Issues Themes Misc.