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, by James Love, Director, Consumer Project on Technology.

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"):
   
   
   1. 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.
      
      
   2. 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.
      
      
   3. 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:
   
   
   1. Should registrars have the right to refuse to register domain names containing any of these words?
      
      No.
      
      
   2. 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:
   
   
   1. 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.
      
      
   2. Is the GAC subject to its own rules or the rules of ICANN?
      
      The GAC seems to operate without any rules at all.
      
      
   3. 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

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