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Comments on Registrar Guidelines

“We are looking for a globally and functionally representative organization, operated on the basis of sound and transparent processes that protect against capture by self-interested factions, and that provides robust, professional management.  The new entity’s processes need to be fair, open, and pro-competitive.  And the new entity needs to have a mechanism for evolving to reflect changes in the constituency of Internet stakeholders.”
Becky Burr on the White Paper,

Comments on ICANN’s Guidelines for
Accreditation of Internet Domain Name Registrars

After years of debate, after three proposals from Dr. Jon Postel, after the IAHC proposal for the gTLD-MoU, and after the U.S. Government intervened with the Green and White Paper processes, ICANN was given conditional approval to assume the responsibilities of the so-called NewCo.  The conditions surrounding this approval were laid out in the MoU between ICANN and the Commerce Department, a document designed to ensure that ICANN lived up to the letter and the spirit of the White Paper.

This author believes that this process has gone seriously astray, as ICANN has ignored the vision as laid out by the White Paper, and in the process, ignored the MoU with Commerce and the wishes of the Internet community.

As evidence of these comments, I hereby submit this analysis of these Draft Guidelines for the Accreditation of Internet Domain Name Registrars:

The Issue of Control

When all is said and done, the fight over the Domain Name System is really a fight over the control of Internet resources.  And no-where is this more apparent than in these draft guidelines. 

Today, whenever a domain name is issued, a delegation of authority occurs -- a delegation of authority that occurs at every level of the domain name system.  When the IANA delegates a Top Level Domain (TLD) to a registry, that registry gains control over that zone file.  In turn, when a registry delegates a Second Level Domain (SLD) to a registrant, that registrant gains control over that zone file.  For example, the French registry has control over all sub-delegations of domain names under .fr, and America Online has control over all sub-delegations of domain names under aol.com.

These draft guidelines would drastically change these relationships.  By circumventing the registry-registrar-registrant relationship, ICANN is in effect, claiming control over the entire name space.  And this control is not to be confused with benevolent or legitimate control, for these guidelines allow ICANN to establish the following unilateral and excessive precedents without any due process or community input:
- Establish a tax for all netizens worldwide.
- Establish a privacy policy for all netizens worldwide.
- Establish a trademark policy for all netizens worldwide.
- Establish ICANN as the ultimate owner of all Intellectual Property in the Domain Name System.
- Establish an entirely new channel for issuing domain names, one that is not yet formed, and consequently, not in a position to offer any organized resistance to any inappropriate policies as proposed under these draft guidelines.

Due Process

The biggest shortcoming of these draft guidelines is not inherent in any of the policies -- the biggest shortcoming has to do with process.

First, these guidelines have been developed by an interim board, unelected and unaccountable to anyone.  This in fact was one of the major objections to selecting ICANN as NewCo from the members of the Boston Working Group and the members of Open Root Server Confederation.  This in fact was one of the major reasons that the Commerce Department required an MoU with ICANN, to ensure that this interim board lived up to the letter and the spirit of the White Paper.

Second, these guidelines have been developed behind closed doors, without any opportunity to comment on their formation.  And even though we now have a small window of opportunity to comment before the next ICANN board meeting, we do not know what rules will be used to address concerns such as these.  Again, no process has been defined for moving forward.

Third, these guidelines far exceed their stated purpose.  The most distasteful aspects of this draft are the precedents it sets with regard to business models, taxation, limitations on diversity, ownership of intellectual property, etc.  The appropriate vehicle to address these questions, according to the White Paper, is the DNSO.

Free Markets and Cultural Diversity

When we look at the existing policies these draft guidelines will impact, we find much diversity.  Today, we have hundreds of resellers who act just like registrars, without any formal licensing process, and without any formal approval process.  All of these resellers have unique policies, and the market decides which ones will be successful.

Similarly, we have many different policies with regard to trademarks.  Some ccTLDs have a formal review process, others require that a company must be duly licensed in their jurisdiction before a domain name will be issued.  A similar level of diversity can be found with regard to privacy.

Whenever we attempt to create rules that apply to the entire Internet, the result will be to limit diversity in the market place.  In turn, consumers will have less options, and more decisions will be made from on high.  The more restrictive the policies, the greater this impact on diversity.  Since these guidelines are very restrictive, they will result in a large decrease in diversity.

In my opinion, this would be one of the worst decisions of our time.  After all, the Internet is the Internet because of its diversity, not in spite of it.

Concerns over Capture

In many ways, these draft guidelines are a reflection of the debate that has been raging over Internet governance.  On one side, we have the large, established organizations who want to control this newest frontier.  On the other, we have those who prefer using free markets to drive innovation, service, diversity and quality.

When we frame the debate in these terms, we find that the ICANN board is actively pursuing a strategy consistent with the goal of the large, established organizations.  Presumably, they want to control this new frontier to protect their current position.  The implications of this are that this board is already captured by these interests.

We are seeing a very similar pattern emerge in the DNSO formation process, as well.  The large, established organizations are refusing to acknowledge that a domain name holder is a legitimate stakeholder in domain name issues.  They are not negotiating in good faith, and in fact, appear to be using every trick in the book in an attempt to capture control over the DNSO.

Finally, in an effort to resolve loose ends quickly, the Commerce Department is prematurely plowing ahead with their plans to transfer assets and authority to ICANN.  Specifically, I’m referring to the recently revised NIST Solicitation to award a sole source contract to ICANN for the existing IANA functions.  While the administration of the root zone is specifically excluded from this offering, it says nothing about the allocation of IP address blocks, which are at least an order of magnitude more valuable than domain names.


The stated purpose of these draft guidelines is to qualify prospective registrars who will bring competition to the existing Network Solutions monopoly in .com, .net, and .org.  These draft guidelines go well beyond their stated purpose. 

They establish ICANN as the owner of the entire name space in the Domain Name System.  They define a business model that features strict control over the distribution of domain names, one that gives ICANN the arbitrary authority to assess taxes without any due process.  They define a new channel of distribution that would circumvent many of the relationships that exist today.  Finally, they establish global standards that severely limit the choice and diversity available to netizens worldwide.

These policies are simply not appropriate, and should not even be considered until a duly formed DNSO is operational.


Jay Fenello
President, Iperdome, Inc.
404-943-0524 http://www.iperdome.com

I support a process whereby cultural values can coexist and compete. Over time, this will likely lead to better relations between all countries of the world, as we each learn to appreciate the cultural differences between our connected societies.
Jay Fenello on Cultural Diversity,