International Studies Association

Minneapolis, March 21, 1998

John R. Mathiason and Charles C. Kuhlman^*

New York University

The question of how to regulate the internet has gradually slunk its way into the discourse of international relations. A "green paper" issued by Ira Magaziner, the Internet specialist in the Clinton Administration in the United States, deals with principles of internet governance. The call by the European Union for an international ministerial-level conference to discuss an Internet Charter is another recent manifestation.

Referring to the issue of encryption, The Economist editorialized:

The phenomenal growth of the Internet, coupled with its borderless character, has posed the question of international governance in unusually stark terms. In a real sense, the Internet is a virtual global commons, a common heritage, an almost classic international public good. Its governance, therefore, is a matter of international public concern.

Attempting to answer the question of how to govern the Internet takes us into somewhat uncharted water. Since the Internet is not physical space, many of the previous precedents do not apply. As a result, proposals for arranging governance of the Internet include alternatives that range from pure-market governance through command-style approaches, with the probable outcome somewhere in between. It involves, inevitably, international organizations and the nature of their role, as opposed to States and to civil society, has become one of the issues of contention.

The first issue area in which the debate has begun is a seemingly technical one: the mechanics of assigning and registering domain names, the addresses that are used for communicating across the internet. Here, alternative approaches are set out clearly, as are the actors in the process.

These actors include the old Internet community, an informal network of scientists and computer technicians who established and nurtured the net, but who have now been overtaken by its growth. They include the large and small corporations who provide the services that make the internet run or who propose to use it for business. They include national governments, who want in some way to protect their citizens, especially the United States, which still has a hegemonic role in the Internet. And they include specialized agencies of the United Nations who see the internet and its regulation as their domain.

This paper analyzes the lessons being learned for governance of the internet from the on-going battle over who will assign and register domain names. More broadly, it draws conclusions about the role of the international public sector in governance of the increasing stock of international public goods.

To understand the domain name controversy, it is necessary to understand the key elements of how the Internet is run.

The invention of packet switching initiated a grand paradigm shift in the technology of information. Previous forms of electrical communication were based on a circuit connection: one sender, one message, one link, one receiver. Two tin cans connected with a taut string are an apt (and still workable) analogue. Information can be conveyed over a circuit link by varying the electrical characteristics of the line such as the voltage or the frequency. As early as 1870, the utility of a single circuit was expanded through multiplexing, the simultaneous transmission of several messages over the same pair of wires. Some of Thomas Edison’s earliest and most profitable patents were devoted to multiplexed telegraphy . Still, the messages were delivered from one point to just one other point.

Switching provided the answer to the problem of binary connectivity by connecting a pair of wires from point A to point B or C or D. . . . As the demand for connections grew, manual switching by banks of operators was superseded by complex mechanical switches beginning in the late 1890s and finally with computerized switches in the 1950s. Although switching systems matured to the point that hundreds of millions of connections a day could be set up and maintained by the telephone network, their essential characteristic remained a continuous full-time pathway between two points at any one time.

Packet switching changed the model. The communication, once put into digital form, was divided into small well-defined groups of coded data, each with an identifying numerical address. Anything that can be digitized can be sent as a packet. To the Internet, a packet is a packet is a packet, whether it carries numbers, words, digitized sounds or digitized pictures. Now it became possible, and the U.S. Defense Department’s Arpanet actualized the possibility, to send an unlimited number of packets over the same circuit with different addresses. Routers, rather than switches, became the key to delivering the packets to the intended destination. Controlled by software and microprocessors, the router inspects the address of a packet and sends it on its way on a full-time circuit to another router to an eventual end point.

The designers of the Arpanet’s successor, the Internet, reserved 32 bits for the packet address (to be superseded by 128 bits in Internet Protocol version 6 [Ipv6]) which are represented in decimal notation in a format xxx.xxx.xxx.xxx, where each group of x’s can range from 0 to 256. The innovation of the World Wide Web was to provide synonyms for the somewhat inscrutable digit strings of the actual address by a mechanism known as a Domain Name Server (DNS). The actual addresses of the packets remained the digit strings but they were replaceable by more or less scrutable alphabetic equivalents stored on a DNS server file which permitted the lookup of the alphabetic name from a numerical address and vice versa. Thus was born the web site name, a new entity and a new property right in new and legally ambiguous sphere.

The telephone system addressing system started in the simplest possible fashion with Sally asking an operator to connect her to Harry. Under the direction of the Bell System affiliated companies and by agreement with the non-Bell operating companies, the U.S. the present ten digit area code-exchange-line number system evolved over decades into a national standard. By contrast, the Internet addressing scheme was designed from its day of creation by engineers and scientists as a logical and comprehensive construct to meet their needs for low cost data communication. The integrity of the scheme was guaranteed by voluntary agreements among engineers in non-commercial groups organized under the rubric of the Internet Engineering Task Force (IETF) motivated by nothing except the workability of the structure.

The alphabetic names associated with numeric addresses were divided into domains, a limited typology of alpha addresses that enabled the routers to do their lookups efficiently. To find the numeric twin of the Internet address of "NYU.EDU," for instance, the router need not search through every entry in its address table, just the addresses ending in ".EDU." These suffixes as the first level of searching and selecting are known as top level domains: the current set includes .COM, .MIL, .ORG and .NET, corresponding to net addresses for entities in commercial, military, non-profit and network administration endeavors.

Internet addresses are conceptually very different from telephone numbers. In the U.S., Canada and the Caribbean, most area codes (technically NPAs--Numbering Plan Area") denote a geographic place with boundaries identifiable with governmental jurisdictions: nations, states, cities. The exchange part of the phone number is traditionally associated with a specific place with a street address, the central office, from which the wires emerge to connect the telephone user over the "last mile" to the network. The place-centered nature of the phone system numbering plan is beginning to break down with the rise of wireless cellular systems, the widespread use of ghostly 800 and 888 numbers which may be answered here one minute and there the next. Nonetheless, jurisdiction can be established in all cases. Internationally, the country code, city code numbering system links phone number to place to jurisdiction.

Internet addresses have no fixed location. They are purely conceptual. There is no central office. The routers which direct packets to the packet address at rates between 100,000 and 500,000 a second can know only the next logical point in a routing table and which outbound circuit is available to carry the packet. Packets are free to traverse the globe on countless circuits to geographically indeterminate end points. The technology provides assurance that the packets are reassembled in the right order and are very likely not corrupted by data errors.

A further distinguishing characteristic of Internet addresses is that neither the sender nor the receiver of a packet is a paying customer for the packet. Telephony requires two paying customers to complete a call, each of whom is a paying for the privilege and each of whom has at a minimum a billing address and usually a street address in a city, a state/province and country. The Internet senders and receivers are inherently tied neither by the billing process nor the technology to place.

We have identified the technical underpinnings of novel realities which have led to major policy debates which are far from resolved. From inside the Internet, names for addresses are structured but purely arbitrary, the technology is indifferent to content, and the sender/receiver dyad is unlocatable in the conventional sense.

Names have value; legal ownership and the right of exclusivity for patents, trademarks, service marks and copyrights for sound/picture/literary content are well-established in Western law. The treaties underlying the World Intellectual Property Organization (WIPO) have extended the principles, if not the practices, to a wide spectrum of countries. A substantial body of commercial law and practice guarantees that recourse is available to a party which believes its property rights have been infringed upon. A variety of adjudicatory mechanisms are available to resolve disputes and provide redress at a national level.

The Internet poses a challenge due to its indeterminate ubiquity. Infringement becomes possible from any corner of the globe, that is, from any address on the Internet. If content can be digitized in can be not only pirated but it can also be disseminated globally with no impediment. No court, mediation board or arbitrator can be presumed to exist with authoritative jurisdiction even if the infringer can be definitively identified. The efforts of the United States to halt the active commerce in pirated compact disks and software in China illustrative of the difficulty of maintaining ownership of intellectual content. Absent any overarching jurisdiction, diplomatic pressure had to be brought to bear in a bilateral context of numerous other foreign policy issues. The Internet raises the very real specter (for the owner of content) of massive evaporation of assets.

The Internet is not an inherently broadcast medium although it shares the ability of radio and television to simultaneously reach many people through Web sites either sought deliberately per occasion by the receiver (a "surfer") or "pushed" by a Web application such as Pointcast. With the partial exceptions of short-wave radio and the direct broadcast satellites, the content of radio and television (including cable TV) broadcasting since Marconi has been firmly under the thumb of governmental authority under the rationales of orderly spectrum allocation (U.S.), revenue generation twinned with cultural uplift (U.K.) or outright thought control. The potentially universal accessibility of content via the Web upsets the traditional regulatory model. In its blithe way, the Web does not care what it carries: hate, love, pornography, fraud, lies, truth, scholarship, charlatanry are all the same in the stream of bits and all equally accessible. The efforts of the German government to shut down Nazi-leaning, anti-Semitic Web sites by penalizing the Internet service provider was a kind of desperate grasping for any available handle since the real purveyors were to difficult to reach. The ease of establishing a Web site provides assurance that the extinction of one offender will not prevent recrudescence. On the horizon are technical developments which will make the Internet much more like a broadcast medium and even more subversive of government control: vastly increased circuit capacity through a technology known as "wave division multiplexing" and a redesign of the underlying Internet protocols to permit simultaneous transmission of the large amounts of data required for images (one such effort is known as MBONE).

The nature of the Internet raises problems of governance that are clearly distinct from matters falling within a national domain as well as most other international issues. These problems shape the debate about domain names as well as other Internet issues.

The ownership of domain names is just one example of a new form of an old, satisfactorily, if not perfectly settled issue. A broader question is how to retain ownership of digital content once it has been digitized and made available on the Internet. The widespread availability of inexpensive copying machines a decade ago created a culture of book and article copying to the great distress of conventional publishers. Law suits and clarifications of the copyright law resulted in a "fair use" doctrine which limits copying to personal use. "Fair use" on the Internet is much more difficult, if not impossible, to define. For one class of content creators, the issue is irrelevant: those for whom dissemination is more important than immediate financial gain. Scientists, scholars in the humanities and creative writers are increasingly bypassing paper-based media and are skipping directly to Internet publication. The effect on the lucrative business of scholarly publishing will be devastating as they watch their feedstock evaporate.

The Internet promises to expand this invisible trade exponentially and uncontrollably from the standpoint of sovereign authorities. Insurance is not the only thing that can be moved beyond existing regulatory measures. Relying upon their semi-sovereign status as well as the global nature of the Internet, the Coeur d'Alene tribe of native Americans in Idaho have established an international lottery on the Internet doubly beyond the control of the U.S. and Idaho State governments. The telecommunications services which have constituted a growing share of world trade in invisibles have been well-regulated affair both in governmental and commercial terms. Traffic is measured in minutes by the sending and recipient countries and companies and compensation is paid under international agreements much as banks settle funds flows. Internet telephony upsets these arrangements by bypassing the telephone companies almost entirely. Once the quality of service deficiencies are addressed and the last mile problem is solved, a very large piece of international trade will disappear from the scope.

Considerable effort is being devoted to security and encryption due to the anonymity of the Internet and the indeterminacy of the packet technology. Law enforcement and national security interests have butted up against the anxiety engendered by the lack of clear knowledge of where the Internet address is located and who is there. Authenticity anxiety is most powerfully felt when money is exchanged, but is also present in other types of communication as mundane as scholarly texts; is the paper on the Web really authored by Dr. Mathiason?

Indeed, the almost total digitization of the telephone network and its reliance on extremely high speed multiplexing techniques drove the U.S. government to successfully press for the adoption of the Communications Assistance to Law Enforcement Act (CALEA) which obliges telephone companies and their suppliers to modify their equipment to support digital wiretaps. Privacy is not a reasonable assumption on the Internet.

5. The problem of preserving national, regional and local culture is exacerbated by the Internet. Before the Internet achieved its current prominence, the dominance of U.S. mass media products in the world market was a major bargaining issue during the Uruguay round of trade negotiations with France and Canada holding out for significant restrictions. Substantively unrelated agricultural negotiations led to compromises which apparently satisfied the negotiators. The Internet players are not so easily identified and mollified (or restricted) as the Disney Corporation and Rupert Murdoch. The relatively low cost of entry and exit means that backyard moguls can become significant originators of cultural content available everywhere. A clash with local mores is inevitable in open societies and even more so in closed ones. The dominance of the English language on the Web is a thorn to cultural preservationists outside the English-speaking countries (and even inside, vide Quebec). Efforts are underway to make the Web multilingual but the most common ways of representing text digitally were designed for the Roman alphabet, especially as used in English.

The historical working commercial and international law has not been brought to bear on these issues or is inherently incapable.

The scientists and technologists who created the internet used informal means to set up governance institutions. As long as the Internet was small and its issues of a technical rather than a policy nature, this system worked well. Technical specifications were worked out within the Internet Engineering Task Force, using a principle of "rough consensus" under which, if there were no major strong objections, standards could be agreed.

Domain names were assigned by another body, acting on a form of delegation from the United States Federal Government, the Internet Assigned Names Authority. In practice, this was run by one individual, Jon Postel, of the University of Southern California.

The overall management structure had a remarkably "clubby" tinge. Individuals holding positions in various computer-related institutions would become involved in the Internet, would establish links with other individuals, would meet at meetings and, generally, be able to solve problems informally.

The increasing rate of growth of the Internet led the National Science Foundation to divest itself of the responsibility for assigning the generic top-level domain names, .COM, .ORG, .NET, .GOV and .EDU.

Assignment of domain names is made by registrars who can provide the names that are linked to the numerical addresses in the major root servers. As a result of the NSF contract, a company located in northern Virginia, Network Solutions, Inc. (NSI), operating as InterNIC, was given the responsibility in 1992 for registering domain names using the top-level names. The contract extended to March 31, 1998.

The rate of growth of domain name registration became nearly exponential. The growth from January 1, 1994 to June 30, 1996, when Network Solutions stopped providing information to the Internet Monthly report, are shown in Figure 1. These total some 500,000 registrations. Network Solutions states in their web site that during the period of their contract they registered over 1.5 million domain names, of which 1 million would have been registered from July 1, 1996 to February 1998 when NSI stopped accepting new registrations.

Source: Calculated by the authors from various issues of the Monthly Internet Report

The phenomenal rate of growth of the Internet soon had several consequences for domain registration. First, Network Solutions began to charge for the registration service, based on the argument that their costs had increased beyond those covered by the NSF contract. Second, the economic benefits of being a domain name registrar became clear. At $100 per registration, the 1.5 million domain names registered by NSI would have yielded revenue in the amount of over $150 million. Third, the policy followed by NSI of "first come, first served" in domain names began increasingly to lead to conflicts over trademarks, as domains began to be registered that conflicted with registered trademarks. Fourth, the volume of registrations frequently overwhelmed NSI’s capacity and produced unhappiness among persons seeking domain names. Finally, an error in updating NSI’s root server on July 16, 1997 essentially crippled the Internet.

The Internet community became concerned that an essential element of Internet management was being controlled by a private monopoly. This was particularly a concern in Europe who sensed that the generic top-level domain names were becoming United States property.

The growth of the Internet might have proceeded by a natural evolutionary course, with increasing signs of conflict, had there not been a decision by some of the Internet founders to try to put some order into the matter of assigning domain names.

They established the International Ad-Hoc Committee (IAHC) whose charter states, inter alia, that

The IAHC was composed of persons named by the Internet Society (ISOC), the Internet Assigned Numbers Authority (IANA), the Internet Architecture Board (IAB) , the Federal Networking Council (FNC) , the International Telecommunication Union (ITU), the International Trademark Association (INTA) and the World Intellectual Property Organization (WIPO). Like the Internet of the time (two years ago), the IAHC was an odd mixture of non-governmental organizations, quasi-governmental bodies, business association and two organizations of the United Nations system. No governments were represented on the IAHC.

Using the time-honored method of decision-making on Internet technical matters, the IAHC prepared a report on the administration of domain names. This meant that the various participants circulated drafts within their networks and then came together in a meeting in December 1996 and agreed on a draft. The participants included the following:

After circulating the draft, a final report was adopted on February 4, 1997. This was followed on February 28, 1997 with a document on the Establishment of a Memorandum of Understanding on the Generic Top Level Domain Name Space of the Internet Domain Name System (gTLD-MOU).

In the world of international telecommunications, memoranda of understanding had been used as vehicles to codify agreement without the need for a binding international treaty. They reflect the fact that telecommunications standards were highly susceptible to technological change and that the entities responsible for implementing standards vary from country to country and often are not governments.

The gLTD-MOU differed from many of the other memoranda of understanding in that, in its preamble, it stated that it was a document in the name of "The Internet Community (1997)". It established a model for governance based on a self-regulating market. The assumptions were clearly set out in the preamble to the MOU:

• that there is a need to institute enhancements in the management and administration of the DNS, particularly related to global name resources, i.e., the generic Top Level Domain (gTLD) name space;
• that the current and future Internet name space stakeholders can benefit most from a self-regulatory and market-oriented approach to gTLD name space registration services;
• that this market-oriented approach to registration services for the gTLD name space should also provide for a global distribution of registrars;
• that, for the gTLD name space, the most appropriate international policy framework would be the establishment of a self-regulatory structure under a voluntary Memorandum of Understanding (MoU);
• that such a self-regulatory structure should be capable of evolving over time to accommodate changed circumstances;
• that both public and private sector entities should be invited to voluntarily sign the MoU;
• that the MoU provide for a policy oversight committee, comprised of individuals who are recognized as collectively
• knowledgeable and expert in the related issues, who shall provide the necessary public policy oversight functions following practices and norms applying to those serving a public trust function;
• that the MoU have a formal mechanism for signatories, drawn from the widest possible range of Internet stakeholders, to advise the policy oversight committee on general policy matters relating to gTLDs and the DNS;
• that the inclusion of a broad range of policy input, however, should not impede the ability of the self-governing structure to take timely decisions, having respect for the dynamics of the rapid decision-making processes that have facilitated Internet development;
• that the Final Report of the International Ad Hoc Committee (IAHC), dated February 4, 1997, contains reasonable recommendations toward accomplishing these objectives.

The Memorandum of Understanding then recognized the role of the ITU by stating

• the maintenance and extension of international cooperation between all Member States and Sector Members of the Union for the improvement and rational use of telecommunications of all kinds;
• promotion of the development of technical facilities and their most efficient operation with a view to improving the efficiency of telecommunication services, increasing their usefulness and making them so far as possible generally available to the public;
• promotion of the extension of the benefits of the new telecommunication technologies to all the world’s inhabitants.

Finally, the MOU gave to ITU the responsibility of acting as depository for the agreement. The ITU duly organized a meeting entitled "Internet Domain Names: Information Session and Meeting of Signatories and Potential Signatories of the Generic Top Level Domain Memorandum of Understanding (gTLD-MoU)" in Geneva from April 29-May 1, 1997.

At the meeting, some 215 signatures were obtained. They were well-distributed internationally and included private companies, non-governmental organizations and government-owned telecommunications companies. (See Table 1) They did not include governments. And they were not heavily weighted in favor of companies or organizations from the United States.

Source: Calculated by the authors from ITU, List of Signatories of the Generic Top Level Domain Memorandum of Understanding (gTLD-MoU), 1997 (http://www3.itu.int/net-itu/gtld-mou/simple.htm)

On May 1, 1997, there was a ceremony on the signing of the MOU, with some 80 of the participants doing so. However, neither the United States nor the European Union signed on. As the AP report of the session put it,

The United States, under considerable pressure from opponents to the MOU, decided to study the matter. In June they announced a public commentary, under the sponsorship of the Department of Commerce (see below). In October, the U.S. House of Representatives held hearings on the issue of domain names. In December, Ira Magaziner, the President’s adviser on the Internet held consultations. In January, the Green Paper was issued.

The Green Paper accepted the argument that the Internet should be self-governing and proposed to remove the U.S. Government from any role. However, in specific terms, it merely proposed to replace the Intenet Assigned Names Authority (in essence, Jon Postel) with a new U.S.-based not-for-profit corporation. It did not address the concern of Internet users and providers from outside the United States, who had been the main advocates of the gTLD-MOU.

It did exclude the ITU and WIPO from any role in the new corporation, by specifying that

The only international dimension was a proposal to include representatives of the regional domain name registries on the board of directors. The paper proposed

The Magaziner proposals were issued with a Request for Comments by the Department of Commerce, with a deadline of March 23, 1998. A preliminary examination of the initial comments suggests even more diffuse comments than in the July-August 1997 round. Most, however, were hostile to the Magaziner approach, especially from commentators from Europe. One comment, for example, states

Another commentator, from Poland, noted

Yet another commentator from Europe wrote:

A more reasoned comment from the European Telecommunication Standards Institute makes the same point:

In effect, the issue of who will give the domain names remains unresolved.

In approaching the issue of order, there are a number of contending approaches, ranging from an almost Adam Smithian "invisible hand" through public sector regulatory agencies along the line of public service commissions in the United States.

One version of this approach is Peter Huber's Law and Disorder in Cyberspace (NY: Oxford, 1997) where he argues that the advance of technology is so rapid that no regulatory regime has had and can have any effect which is not detrimental. The maintenance of order in the "telecosm" (Huber's neologism) should be maintained by "private actors and private litigants, common law courts and the market" Against Huber, Stewart Baker has argued that judges are clumsy and retrograde makers of social policy. More to the point, in the international arena, the Anglo-Saxon common law tradition is non-existent and "the market" is a synonym for the global behemoths of Canada, the United States, the European Union and Japan.

Faced with this problem, some advocates argue for a purely private regulation, as exemplified by an essay by Milton Mueller, which states:

Just as the Federal Communications Commission has regulated the cable TV, telephone and broadcast industries for almost 100 years, so also could it and its foreign counterparts regulate the Internet. Two obstacles are likely to obviate this option, which finds little favor among those concerned with Internet regulation.

First, the technology is mutating so quickly that even the FCC cannot keep up with the demands for new regulations in its traditional sphere. Second, the Internet lacks the choke points of easily identifiable parties to regulate. A comparison of the efficacy of customs collection from large ocean vessels with that from Caribbean drug runners in small fast boats which can land anywhere points up the difficulty of dealing with widely dispersed mobile targets.

The basis for an international umbrella to set policy and resolve disputes has been laid with the World Trade Organization which is responsible for administering trade agreements such as the General Agreement on Trade and Tariffs (GATT), the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Intellectual Property Rights (TRIPS). The emerging services of the Internet and the dilemmas they pose have not yet been addressed by the WTO, but the model has been established.

When the United States federal government became aware that it would need to have a policy on the domain name question, one of its first reactions was to request comments using a formal procedure. Accordingly, on July 1, 1997 the Department of Commerce issued a Request for Comments on the Registration and Administration of Internet Domain Names through a formal publication in the Federal Register (Docket No. 970613137-7137-01). The comment period began on July 1 and ended on August 18, 1997. The responses were published on the Internet at the website of the National Telecommunications and Information Administration, which was the federal authority responsible for collecting and analyzing the results.

The request elicited a large number of comments, which covered the spectrum of persons and institutions concerned with the Internet. These included the major associations of the original Internet denizens like the Internet Society, the new entrepreneurs, the corporations maintaining the pipes like MCI and ATT, main computer manufacturers like IBM, trademark lawyers, business associations as well as many individuals. These comments can be taken as a sample of opinions about the key issues of the domain name controversy as well as about Internet governance generally.

The Department of Commerce reported a total of 432 comments. However, of these, 113 were identical comments favoring a particular new proprietary domain names system being proposed by a company called pgMedia. Others were duplicates, or did not contain information or were not reported on-line. After subtracting these, there were a total of 282 substantive comments that could be analyzed.

The comments came primarily from individuals (see Table 2)

As would be expected for a national request for comments, of the respondents, almost all were from the United States (93 percent), with most of the remaining (5.6 percent) from Canada, the United Kingdom or Australia.

The comments ranged from short messages on a specific topic to detailed responses following the structure of the request for comments. Many of the individuals who replied were known specialists on the internet or persons who had been concerned with the domain name controversy. To separate the "eminent" comments from those of what might be termed the Internet "hoi polloi", a list produced by Anthony Rutkowski, of the World Internet Alliance, was used. Rutkowski, one of the original Internet founders and an active participant in the domain name and internet governance debate presented a selection of comments in the World Internet Alliance web page. These comments included a more balanced selection of types of respondents (Table 3). Business association included such groups as the American Bar Association, the Canadian Association of Internet Providers, the Coalition of Advertising Supported Information and Entertainment (CASIE), the Commercial Internet Exchange and the International Trademark Association. ISP’s included companies such as CommerceNet, the Internet Computer Bureau and PSINet. Large corporations included such as IBM, MCI Communications, British Telecom, Bell Atlantic. Non-governmental organizations included, among others, the Asia and Pacific Internet Association (APIA), the Electronic Frontier Foundation and the Internet Society. Individuals included such Internet leaders as Jon Postel, the IANA Administrator; David Maher, the iPOC chair; Carl Oppedahl and Einar Stefferud.

In order to see whether the commenters were concerned with the international nature of the Internet, comments were coded in terms of whether this was mentioned anywhere in the response. Somewhat more than a third of the comments mentioned the international nature of the Internet, the remainder did not. However, there was a significant difference between the "eminent" commenters and the rest. Of the eminents, 74 percent were internationally-oriented, compared with only 23 percent of the "hoi polloi".

It is clear that the greatest sense of the international Internet is held by those with the greatest stake in it: the large corporations, the business association and the non-governmental organizations of internet users.

A second issue had to do with whether the response indicated that the Internet should, to the extent possible, be self-governing. Less than a third of the comments mentioned this aspect of the Internet, although the request for comments clearly implied this alternative. However, over half of the "eminents" favored self-government for the Internet.

As can be seen from Table 6, the comments from the various not-for-profit associations, as well as the business associations are particularly committed to the idea of a self-regulated Internet.

Finally, the comments were examined to see whether there was any mention of one or more of the existing international organizations (ITU, WIPO, WTO or the United Nations). Overall, only 14 percent of the comment mentioned an international organization. However, almost none of the "hoi polloi" did so. Almost half of the "eminents" mentioned international organizations. As can be seen from Table 7, non-governmental organizations were particularly prone to do so.

The main thrust of each comment in terms of the issues with which the domain name controversy was concerned was also coded. For example, if the bulk of the comment was devoted to complaints about the registry service provided by Network Services, Incorporated, this would be coded. Similarly, if the thrust of the comment was to favor the proposals made in the Memorandum of Understanding on generic Top-Level Domain Names, this was coded. Table 8 shows the result for both Eminents and the Hoi Polloi.

For the mass of commenters, the issues in domain names were technical in nature. These were comments about possible structures of the domain names, including new schemes (the 113 repeated comments proposing a new structure were coded as a single comment). About half of the "technical" comments concerned the desirability of having a domain name for adult sites to facilitate filtering of these sites for children. Many of the "hoi polloi" sent comments complaining about their treatment by Network Solutions, often in some detail.

The pattern among the "eminents" is different. The largest category consisted of comments generally supporting the proposals agreed under the Memorandum of Understanding. This, however, reflects the fact that they were comments produced, generally speaking, by parties to the MOU.

On the matter of whether the Internet needs regulation of some kind, the division is clear. Some 46 percent of the eminents clearly favored some form. If those concerned with trademarks, which is, by definition, a regulatory matter, are added, the total reaches 63 percent. Some of this group, however, favors national rather than international regulation.

In contrast, some 11 percent of the eminents are consciously opposed to any public regulation of the Internet.

A few of the responses argued for an "Internet Constitution" which would set out rights and responsibilities for the Internet.

The domain name controversy has begun to set out more clearly the different players who are involved with Internet governance. They each have different perspectives on what governance involves, and whether there should be it should be international.

The first class of players is the group known as the "netizens". These are the legates of the original users of the Internet, the computer scientists and researchers who developed it. Some three generations can be identified.

The earliest generation consists of pioneers like Jon Postel, Vint Cerf, Don Heath and Tony Rutkowski. They consistently believe that the Internet should be regulated by the users, using the kinds of consensus techniques that formed the basis of decision-making in the early days. Their mantra is participation. They are organized through the various institutions that evolved during the early days of the Net: the Internet Society, the IETF and such think tanks as the Electronic Frontier Foundation. The EFF comment in the RFC of the Department of Commerce sets out the position clearly:

There is a difference that can be observed among these first generation Netizens between those from the United States and elsewhere. The associations from Asia and from Europe have been much more convinced of the need for regulation, and have tended to see it in a larger context. For example, the Asia and Pacific Internet Association (APIA) notes the many linkages among issues, in its RFC comment:

The Domain Name controversy divided the original netizens. While most moved in the direction of the IAHC proposal for a quasi-public self-regulatory mechanism, some moved in the direction of no regulation at all. A leader in this effort has been Anthony Rutkowski, former executive director of the Internet Society and a former senior adviser to the ITU, whose disillusionment with that institution is profound. He rejects the idea that the Internet is a public resource in the classical sense and therefore needs regulation. This is reflected in his comment in response to the Department of Commerce RFC:

Another position, by an Internet pioneer, Einer Stefferud, finds the number of linkages so broad and complex that no real Internet-based solution can address them:

While the pioneer generation has been debating the profundities of Internet governance, a second generation has begun to emerge, of Internet users who came on board during the expansion phase. Many of these consider themselves libertarians, opposed to any regulation whatsoever of the Internet. Others express a concern about the kinds of information that transit the Net, especially adult-oriented material. This generation at present lacks organizations and institutions to express their diverse views, other than individual e-mails, chat groups and on-line forums. How to incorporate these views will be a challenge.

The growth of the economic dimension of the Internet has involved large corporations in the governance issue. The dispute within the United States between Microsoft and other corporations regarding the integration of Internet browser software into operating systems is only one of many issues of governance and competition.

On the whole, the corporate world favors regulation of the Internet, albeit with a view to protecting competition and corporate interests. The issue turns on whether this regulation should be national or international.

The clearest position on national regulation is expressed by Network Solutions, Inc., the domain name registrar whose monopoly as a government contractor provoked the crisis in the first place. In its comment to the Department of Commerce Request for Comments, NSI states a clear case for narrow national regulation, based on the premise that the Internet is not a public good:

The major companies who provide the pipes over which connections among networks flow constitute a major corporate community. They are, on the whole, favorable to international regulation in the sense that international telecommunications companies have always been favorable: international organizations should provide the locus for agreeing on standards for connectivity and payment arrangements. They have been comfortable with the ITU role and most signed on to the gTLD-MOU.

Like the pipe providers, the European telecommunications companies, which are now in a stage of deregulation and devolution, have been comfortable with international regulation through the ITU. Their position, like that of the pipe providers, is well expressed in the comment of British Telecom to the Department of Commerce RFC:C

A new class of corporations is the Internet Service Providers, the entities that provide network connections. While some are large, like America On-line, most are small. Their approach to regulation is somewhere between the easy-going self-regulation proposed by the first-generation netizens and the standard regulation favored by the European Telcos and the pipe providers. In some of the comments, there is found a naive view of some parliamentary method of Internet governance decision-making. This is reflected in the comment of the Internet Service Providers Consortium (ISP/C):

The growth of the Internet has brought a new sub-group of corporate actors into the picture. These can range from the companies hoping to cash in on an opening up of the domain registration system as new registrars through small- and medium-size businesses hoping to use the Internet to expand their markets. Like the large corporations, they have a sense that regulation is probably necessary, but are less comfortable with the normal international mechanisms.

A clear statement of the views of the emerging consumer sector is found in the comment submitted by the Coalition for Advertising Supported Information and Entertainment (CASIE), a joint effort of the U.S. based Association of National Advertisers (ANA) and the American Association of Advertising Agencies (AAAA):

For governments, the Internet provides a dilemma. Effective national regulation is clearly impossible from a technical standpoint, most of the constituency groups oppose vigorous national regulation and an open, competitive, market-based world trade system is the dominant ideology. At the same time, governments are under pressure to avoid monopolies, control what is considered by many to be objectionable content and maintain a level playing field.

The domain name controversy has laid out these dilemmas in clear terms. One difficulty for national regulators is that there is no natural meeting place to exercise national interest. The issues are diffuse and are dealt with by a large number of entities, both national and international. This lack of location to reach agreements has affected the national positions of many governments.

As the original funder of the Internet, the United States government has had an involvement with its governance since the beginning, although it traditionally worked through the informal decision-making structures of the IETF and the Federal Network Council. There has been a recognition of the increased economic importance of the Internet that it embodied in the Government’s paper on a Framework for Electronic Commerce. This paper enunciated five principles relating to regulation:

• The private sector should lead. Governments should encourage industry self-regulation wherever appropriate and support the efforts of private sector organizations to develop mechanisms to facilitate the successful operation of the Internet. Even where collective agreements or standards are necessary, private entities should, where possible, take the lead in organizing them. Where government action or intergovernmental agreements are necessary, on taxation for example, private sector participation should be a formal part of the policy making process.

• Governments should avoid undue restrictions on electronic commerce. Parties should be able to enter into legitimate agreements to buy and sell products and services across the Internet with minimal government involvement or intervention.

• Where governmental involvement is needed, its aim should be to support and enforce a predictable, minimalist, consistent and simple legal environment for commerce.

• Governments should recognize the unique qualities of the Internet. The genius and explosive success of the Internet can be attributed in part to its decentralized nature and to its tradition of bottom-up governance. These same characteristics pose significant logistical and technological challenges to existing regulatory models, and governments should tailor their policies accordingly.

• Electronic Commerce over the Internet should be facilitated on a global basis.

These principles of non-interference quickly ran into the difficulty that for some areas of the Internet, like encryption or control of pornography, there were strong pressures for national regulation. Moreover, the government policy lacked a specific underlying management model. Thus, when the IAHC proposal was tabled, it was partly consistent with the enunciated principles, but faced opposition. The response of the government was to temporize, as reflected in the Magaziner Green Paper, in such a way that the ultimate decision is not yet clear.

For the European Union, the problem has been different. The excessively-regulated state-owned telecommunications companies with their inherent lack of competition had meant that telecommunications costs were high in Europe. Moreover, the structure did not allow European countries to benefit fully from the new technologies.

The decision to de-regulate telecommunications has opened up the prospect of a more vigorous, competitive Europe. This approach is stated in the paper sent by the European Commission on electronic commerce which, in its executive summary, states:

Like national governments, international organizations have had difficulties in coming to terms with Internet regulation. While, for domain names, the ITU and WIPO, as well as, to an extent, WTO have been involved, the intersection of the domain names issue with other Internet issues has produced an involvement of other international organizations. The international organizations involved to date include ITU, WIPO, WTO, the Office of the High Commissioner for Human Rights, the United Nations Commission on International Trade Law, the OECD and ASEAN, to name a few. However, no central United Nations body (like the Economic and Social Council) has yet addressed the issue of the Internet.

As the international organization concerned with standards of telecommunications, the ITU has taken an aggressive role in the Internet recently. While, in the early years of the decade, it seemed to be a latecomer, it has since tried to stake out its position. This has been articulated by the current ITU Director-General, Pekka Tarjanne:

The ITU, based on this premise, agreed to act as registrar for the gTLD-MOU. It gives a high priority to the extension of universal information and communications services in the context of development, as well as working in its own areas related to trade in information services.

As the specialized agency of the United Nations system concerned with intellectual property, the World Intellectual Property Organization administers a series of conventions dealing with trademarks and copyrights. It became involved in the domain name question because of the issues of trademark infringement. As noted above, the borderless nature of the Internet creates new difficulties in administering trademarks and the WIPO was found to be the only place where disputes could reasonably be expected to be resolved. The WIPO position was set out in an "open letter to the Internet Community" in June 1997. In addition to describing and defending the procedures set out in the gTLD-MOU, the statement pointed out that:

With the entry-into-force of the agreement on trade in telecommunications services on January 1, 1998, the World Trade Organization has become a major player in the Internet. Its role will be to ensure that there are no barriers to trade over the Internet, including, presumably, some concern with domain names.

Many of those who are critical of the ITU have suggested that the WTO should be the international organization where regulation should be focused. However, the WTO is one of the least universal of the international organizations, since many countries, like China, are not yet members.

The WTO itself will become involved because further developments of the Internet will need investments that themselves depend on an orderly market. As Gauntt puts it in his analysis of the telecommunications services agreement

The role is argued by Belz to be likely to expand in the context of the next round of WTO negotiations where the focus will be on linkages among sectoral trade agreements. She states

A somewhat obscure United Nations body has also been involved with the Internet. The United Nations Committee on International Trade Law has been examining the issue of authentication. UNCITRAL is concerned with the legal nuts and bolts of international trade. It has spent considerable time concerned about the standardization of bills of lading. However, from a legal perspective, determining who is actually at the other end of an Internet connection is a significant issue. This kind of involvement is likely to increase as issues of encryption, financial transaction, transnational contracts and the like become more critical as the Internet develops.

The initial involvement of the United Nations High Commissioner for Human Rights has been in the context of negative consequences of the freedom that is inherent in the Net. As an adjunct to the 1997 meeting of the Committee on the Elimination of Racial Discrimination, the monitoring body for the Convention on the Elimination of Racial Discrimination, a seminar was held to address the problem of "hate sites". The meeting brought together experts from a variety of perspectives, ranging from Internet pioneers like Tony Rutkowski through persons concerned with issues of racial prejudice like the Wiesenthal Center in Vienna. It is perhaps significant that the seminar was able to reach consensus on very few conclusions. The report on the seminar conclusions state, inter alia, that

As foreshadowed in the report of the seminar, there are many other issues of human rights implicit in the Internet: freedom of expression, economic, social and cultural rights, where regulatory decisions can have an impact.

The Organization for Economic Cooperation and Development has taken an active interest in the Internet, primarily through the promotion of electronic commerce. Its conference in 1997 in Turku, Finland was an effort to bring together both governmental and private sector leaders concerned with expanding electronic markets.

As the above analysis has shown, the domain names problem is only part of a complex picture. There are many linkages of internet issues, ranging through telecommunications policy, domain names, international trade, intellectual property, human rights and cultural preservation issues. There are, moreover, a large number of actors, both in terms of non-governmental constituencies and governmental. The non-governmental constituencies, the civil society of the Internet, are a heterogeneous lot: the full-freedom of expression original netizens, large corporate bureaucracies, new potential "robber baron" entrepreneurs as well as ordinary people whose interest in the Net is purely functional. The governmental actors range from state-owned telecommunications companies, national police authorities, trade ministries, defense authorities through national regulatory commissions. At the intergovernmental level, virtually all of the organizations of the United Nations system have some interest. Several, like the ITU, WTO and WIPO have a direct mandated interest.

The playing field of the Internet is not level, and there are a large number of teams trying to play. There may not even be a consensus on where the goal posts are located, how scoring is done and how winners can be determined.

Under these circumstances, regulation takes on a particular meaning. Any effort to create a regulatory solution for one part of the internet has a great probability of creating a new problem for another. The speed of technological change -- the application of Moore’s law -- makes most technological fixes obsolete before they are made. The major players in innovation are almost never public authorities.

And yet, it is manifestly clear that some form of regulation is necessary to maintain the coherence of the Internet in the context of technological and economic change.

This poses a particular opportunity for the international public sector. Unlike national regulatory authorities, international organization lack the attribute of sovereignty: they can make few, if any, mandatory rulings. Rather, they can reach, with the concerned parties, a form of understanding about the rules of the game. The standard international mode of decision-making is consensus. This is also the mode that, for its initial years, governed decision-making in the Internet. The correspondence in method is striking.

The question to be answered, then, is how to establish a regulatory framework at the international level that will permit change and adaptation to occur without the negatives that come from market imperfections and bad national public policy. Clearly, there must be an initial, very broad agreement, on the governance rules for the Internet.

This point has been recognized by the European Union, which, in their March 6, 1998 Green paper stated:

The Union proposed a ministerial level conference on the question. However, this conventional approach has one difficulty: which ministers? And, what about the other players.

An alternative is to organize under the widest possible international aegis, a process of elaborating what could be termed, not a charter, but rather a framework convention on the Internet. The purpose of this document, which would have to be agreed among governments but would require the consent of all of the Internet constituencies, would be to set out clearly the principles, norms and procedures necessary for smooth, efficient and just operation of the Net. It would create an Internet Regime.

The precedent for this kind of approach has been clearly established through both the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992 and the Fourth World Conference on Women at Beijing in 1995. Both conferences drew their representation and their strength from a broad range of interests that went well beyond nation-states. They served to involve interested parties, to allow them to help shape the outcome and, by having seen their input reflected, they have accepted, in large measure, its commitments.

More specifically, the run-up to Rio included the negotiation of the United Nations Framework Convention on Climate Change, a document which merely set the basis for subsequent negotiations such as that recently concluded in Kyoto in December 1997. This provides a very useful model for looking at Internet regulation.

However, there has been in the context of the central intergovernmental bodies of the United Nations almost no interest in this subject. The wider political and economic implications of the growth of the Global Information Structure have not yet found resonance and, as a result, many of the key linkages of issues which will ultimately require some form of framework document have not been made. A case in point, is the relationship of the economic growth of the Internet with the need for universal service provision which, in United Nations terms translates as means to provide the investment resources to the developing countries in quantities sufficient to bring them into the GII.

The involvement of the central United Nations intergovernmental bodies and their secretariats in the issues of Internet regulation may be inevitable, but will only occur quickly if the Internet constituencies see the virtue of involving them as a means of establishing linkages. The cost of not doing so will be that segmented regulation -- without an overarching agreement on principles and norms -- will take place and will be difficult to reverse. A better alternative is to do what has always been done in successful regime creation: agree on the basics first and make sure that all of the concerned parties are in on the agreement.