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The Great Internet Give-Away?
David G. Post
March 2, 2000

[available at http://www.temple.edu/lawschool/dpost/icann/ccTLD.html and at http://www.icannwatch.org]


Think back to your high school world history class - remember the "Line of Demarcation"? The Pope drew a line on a map of the New World, and proceeded to give everything to the left of the line to Spain, and everything to the right to Portugal. Seemed pretty ridiculous, no?

At next week's meetings in Cairo, the ICANN Board will considering - and some of the smart money, at least, has them endorsing - a document submitted by the "Government Advisory Committee" (the "GAC") entitled "Principles for Delegation and Administration of ccTLDs." The ccTLDs are the "country code top-level domains," those funny two-letter domains - .FR, .JP, .UK, .CN, etc. - that are distinct from the "generic top-level domains" (gTLDs to the cognoscenti) with which most people are more familiar (.COM, .ORG, .NET, etc.). The document lays out a pretty straightforward story: ICANN is going to hand over explicit responsibility for each country code domain to the government of the designated country. Stripped to its essentials, the policy states:

"[1] The Internet naming system is a public resource. . . . [2] The relevant government or public authority ultimately represents the interests of the people of the country or territory for which the ccTLD has been designated. . . . [3] ICANN should delegate the administration of a ccTLD only to an organization, enterprise, or individual that has been designated by the relevant government or public authority."
So there it is. It is an important moment in the ongoing history of the Internet - an express delegation of power to existing territorial sovereigns over (a portion of) the net. It is, I suppose, a sign of how far we have come since the 16th century that instead of just two recipients for this valuable chunk of real estate we now have 230 or so (and that the deal was apparently brokered not by the Pope but by the US Department of Commerce - though I guess we can't be sure of that, since the Government Advisory Committee meets in secret).

What are we to make of it?

I think that the answer to that, too, is pretty simple: It is either a perfectly fine idea, or an absolute catastrophe; it all depends on how big a chunk of Internet real estate is being carved up and given away. Think of it this way: assume that there were lots of top-level domains -- not just the existing ccTLDs and the seven existing gTLDs, but an ever-expanding supply of new top-level domains (.Children, .Biz., .Music, .Auto, .Bank, .Sex, .Store, .Computers, . . .). In such a world, do I care that the French government is going to be given explicit and near-total control over .FR? Why should I? Let the French government try to build a French corner of cyberspace, let them, if they wish, limit that corner to French language sites, and/or to sites that uphold "French values," and/or whatever they think the people of France would (or should) like. And let the Japanese government do the same with .JP, the Chinese government with .CN, the Nepalis with .NP, etc. It is a rather imaginative way to introduce a kind of localism onto the net that people might find useful and valuable; countries can structure their domains to provide for further geographical subdivision (much the way the .US domain is currently structured, with a hierarchical <<locality.State.US>> structure (e.g., <<Philadelphia.PA.US>>), so that people can map, if they wish, their familiar local geographies onto the global network in ways they may find coherent (without interfering with those who wish to take advantage of the global character of the medium and build non-geographical places in the generic TLDs).

As long as the horizon is infinitely distant, as long as the corner of the space in the governments' control is bounded by an unlimited frontier to which net users can emigrate if they don't like what their governments have done "at home," then I say: let the governments of the world have their chunk of e-territory and let them build away. It only adds more voices to the net's diversity, more choices for people who travel there. These domains will either wither and die, or they will grow, depending on the governments' abilities to make them places that people actually want to inhabit - precisely the "right" result.

And it is the beauty of the Internet, of course, that this is an entirely realistic prospect; unlike the New World that the Pope carved up, this one really can be of infinite size, its frontier really can be ever-expanding. There is absolutely no technical reason why the network cannot accommodate hundreds, or thousands, of new top-level domains.

That's the good news. The bad news is that ICANN has thus far shown precious little willingness to try to realize this potential, to set up a system under which additional generic TLDs can be added to the domain name system. They are, they say, continuing to study the problem; I guess I'm willing to continue to take them at their word, but not for ever. Some of the more knowledgeable observers of the ICANN process despair that this will ever happen; ICANN, in their view, has already been captured by the global trademark interests (the only organized voice opposing opening up the space to new TLDs), and the cause has been lost.

And if that's true, then ICANN's delegation of control over ccTLD-space really is a catastrophe, a give-away of unprecedented proportions. The existing generic TLDs, bear in mind, are getting crowded - that, after all, is why we continue to find trademark owners and domain name holders fighting with one another over the ownership of particular domain names. If ICANN chooses to maintain the (entirely artificial) scarcity of TLDs, then the ccTLDs are no longer just a small corner of cyberspace at all; they would in that event constitute much of the net's remaining uninhabited territory. In that case, I - and anyone else who cares about the continued growth of the global network - suddenly have to care a lot about who is given ownership rights over this terrain.

ICANN should take no action on the GAC Report until it is prepared to take action on the larger, and far more important question, of whether it is going to open up gTLD-space. ICANN has said, over and over again, that its function is to help build, and implement, the consensus of the Internet community. They now have an unprecedented opportunity to do just that. The governments want control of the ccTLDs; the rest of us (except for the owners of existing global trademarks) want an open domain space. It's a perfect quid pro quo; the governments get a degree of formal control they do not now have, we get a promise that the frontier will be there if we wish to emigrate to places that are not under their direct control. Once the ccTLDs are handed over, the opportunity to forge this consensus disappears, for once the governments of the world have control over this territory they will inevitably seek to maximize its value by maintaining the scarcity of the resource. They will join forces with the trademark interests and work to defeat proposals to expand domain space. And that will be a black day indeed for the Net.