Signposts in Cyberspace The Domain Name System and Internet Navigation (2005) / Chapter Skim
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5 The Domain Name System: Institutional Issues
5 The Domain Name System: Institutional Issues
Pages 187-280
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From page 187... ...
That makes achieving consensus decisions -- in the tradition of the early Internet community -- increasingly difficult and leaves a residue of dissatisfaction with any decision that is taken. Since attention to the institutional framework of the DNS can be expected to continue to increase with the Internet's growing significance as a critical global communications infrastructure, so too can the critical institutional issues be expected to receive increasing scrutiny and to give rise to increasing controversy.
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3. Oversight and operation of root name servers.
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From page 189... ...
ICANN nominally has the same responsibilities as other registries: it registers entries into the zone file and sees to the distribution of that zone file to the name server operators. However, as noted in Chapter 3, unlike the TLD registries, ICANN does not directly contract for operation of the root name servers, nor does it have contracts with all the TLDs.
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From page 190... ...
However, there are many aspects of the Internet that are or might be subject to governance but that lie outside the DNS and the areas of responsibility of its managers.1 These include, for example, controlling spam; dealing with use of the Internet for illegal purposes; resolving the "digital divide" between developed and developing countries; protecting intellectual property other than domain names; protecting privacy and freedom of expression; and facilitating and regulating e-commerce.2 Furthermore, there are increasingly important aspects of the Internet that are currently subject to little public governance, such as search engines and directories. Thus, DNS governance is a part of, but does not include many aspects of, Internet governance.
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See World Summit on the Information Society, Working Group on Internet Governance, written contribution from Norway, which is available at |
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Not only would the U.S. government have to be an important party to any transfer, but it also holds an effective veto because all of the root name server operators would have to agree to accept the root zone file from a new source, yet 3 of the 12 operators are U.S.
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12ITU Resolution 102, Management of Internet Domain Names and Addresses, Marrakesh, Morocco, 2002, available at |
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It has generally been difficult for individuals and public interest groups to participate in the ITU's processes, although the ITU has expressed a commitment to change. Although it engaged individuals and groups in the meeting on Internet governance that it sponsored in association with the WSIS,14 it excluded non-governmental organizations from the decisionmaking sessions and it has not moved to change the ITU's charter or ITUT's internal rules to permit their active participation.
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From page 195... ...
Alternative B: International Treaty Organization Description and Evaluation The negotiation of an international treaty to establish a special agency of the United Nations for Internet governance is also not likely to be supported by the U.S. government.
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government's willingness to give up the ultimate stewardship of the root, they also demonstrate its 15Department of Commerce (DOC) , "Department of Commerce Statement Regarding Extension of Memorandum of Understanding with ICANN," September 19, 2002, available at |
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, "Procedures for Handling Requests by ccTLD Managers to Change Nameservers," May 13, 2003, available at |
From page 198... ...
The concerns about management processes have included the lack of transparency, effectiveness, accountability, and recourse in ICANN's electoral and decision processes. 20In the recent U.N.-sponsored forums on Internet governance, a few nations have expressed a concern that their ccTLDs could be removed from the root by the U.S.
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Conclusion: ICANN is more likely to achieve perceived legitimacy with a narrower scope rather than with a broader one. 22See, for example, Center for Democracy and Technology, ICANN and Internet Governance: Getting Back to Basics, July 2004, available at |
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Those who believe that ICANN is principally a technical-administrative body may favor selection of the board by members of the technicaladministrative community from among the members of that community on the basis of expertise and experience -- a traditional process in that community. In contrast, those who see ICANN as a major element of Internet governance may favor a board comprising representatives of the broad Internet user community chosen, so as to achieve legitimacy, through an open electoral process -- Internet democracy.
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From page 201... ...
The 15-member board in 2004 comprises six representatives selected by the three major constituency groups (the Generic Names Supporting Organization -- GNSO; the Country Code Names Supporting Organization -- ccNSO; and the Address Supporting Organization -- ASO) ; eight others chosen by a board-selected nominating committee, which includes representatives of ICANN stakeholders, from nominations made by constituency groups and the public; and the ICANN president, serving ex officio.
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From page 202... ...
Or should the distribution of board membership better reflect Internet usage in each country or region? Or should it, perhaps, reflect the geographic distribution of registered domain names?
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See also Tamar Frankel, "Accountability and Oversight of the Internet Corporation for Assigned Names and Numbers (ICANN) ," Report to the Markle Foundation, July 12, 2002, available at |
From page 204... ...
The alternatives described and evaluated below include two broadening proposals -- one by the Markle Foundation and the other by the Non-governmental Organization and Academic ICANN Study group-and two narrowing proposals, one that ICANN serve solely as the registry for the root and another that it be a private trade association. The discussion concludes with two proposals that combine a narrowing of scope with a broadening of participation -- a proposal by the Center for Democracy and Technology, and the actual reform that ICANN adopted in 2003.
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From page 205... ...
These steps should include some kind of public oversight by politically account able officials; development of due-process principles and clear, publicly available procedures for the resolution of complaints; public disclosure of its funding sources and budgets; staff and board members who are held accountable to a clear set of professional norms and standards; open meetings; and documentation of the rationale for ICANN's policy deci sions and actions.28 Evaluation Although pointing in attractive directions, the Markle proposal's recommendations about ICANN board composition are, unfortunately, too general to confront and resolve the practical difficulties of their implementation. For example: What are the groups that constitute "all" public and private interests that should be represented on the board?
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From page 206... ...
glo bal public participation and representation for its long-term legiti macy and stability." · "To the extent possible, the entire affected Internet community- from companies in the business of providing DNS services, to do main name holders impacted by ICANN's rules, to individual Internet users and consumers whose activities online could be shaped by ICANN's rules -- should be considered stakeholders in ICANN's activities." · "ICANN's existing supporting organization structures [in 2001] , or representation by governments, do not alone provide appropriate public participation." · "`At-Large' Participatory Structures and Representation on the Board are therefore essential channels for broader stakeholder in volvement and ICANN's legitimacy." On the basis of these arguments, the NAIS group's report asserted two "overarching principles: The public membership [of ICANN]
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From page 207... ...
"Thus," the NAIS group's report concluded, "it is essential for ICANN to establish an inclusive, open At-Large Membership, with a clear means to participate in the decision-making process and substantial direct representation on the Board." Evaluation This is a clear and full expression of the view that ICANN's influence on the Internet is so broad and important that the Internet's end users must have a strong role (equal to that of the supporting organizations) in its governance.
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From page 208... ...
Under this approach, ICANN's governance would be simplified by narrowing its controlling constituencies to four groups of primary stakeholders: · The gTLD and ccTLD registries that depend on the root to direct potential users to them, · The root name server operators that provide access to the root zone file, · The Internet service providers (ISPs) and intranets that rely on the root to enable them to do lookups on the TLDs, and · The technical community that defines protocols and standards af fecting the root and its operation.
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government-operated root name servers so that they could receive payments.
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From page 210... ...
Very large TLDs, such as .com, would have a substantial number of votes, but not enough to overcome the sum of the votes of other TLDs, the root name service providers, and the technical community. The most difficult issue would be imposing a fee on the ISPs for access to the root zone file since there is no practical way to prevent access to those that have not paid.
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From page 211... ...
Where regulation would be required to supplement industry agreements and market forces, this alternative would rely on existing practices, using national, regional, and local governments or formal intergovernmental treaties. In the proponents' view: "It is hubris to assume that there is something so special about Internet naming issues that the domain name industry requires a unique form of government that is different from all other industries."38 One consequence of adopting this alternative would be the possible proliferation of DNS root zones, which might be created by countries un 35New.net (see Section 3.3.1)
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From page 212... ...
Finally, the workings of the market would determine whether any root zone, other than the legacy root, would survive. Evaluation As with alternative C, the approach of ICANN as trade association moves away from the notion of a broadly representative board for ICANN and replaces it with a smaller set of stakeholders that have a direct interest in operating the root.
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From page 213... ...
was created"; · Make its decision making "transparent, predictable and open to broad global participation by stakeholders, including users"; and · Make its "future policies binding only if they are supported by a demonstrable bottom-up consensus among affected parties." It also asserted that ICANN's "only real and legitimate power comes from voluntary [emphasis in the original] contracts and certain other mutually acceptable relationships and agreements." Evaluation Alternative E was published as a proposal in the context of the World Summit on the Information Society to refute the arguments and correct the misperceptions of those who see ICANN as a "precedent or justification" for international centralization of Internet governance.
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From page 214... ...
The new ICANN bylaws, which took effect in 2003, have remade the governing structure of ICANN, especially the board and the supporting organizations that represent its constituencies. They are derived from a mission statement revised and sharpened in response to the widely held perception that ICANN had suffered from a vague and undefined concept of its mission.
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2. Coordinates the operation and evolution of the DNS's root name server system.
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It also establishes an independent review process to review whether the board has acted consistently with the bylaws. To strengthen government participation without directly including government representatives on the board, the bylaws call for the Governmental Advisory Committee to appoint a non-voting liaison to the board, a delegate to the nominating committee, and non-voting liaisons to each of the supporting organizations and to the other advisory committees.
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First, the Department of Commerce has expressed the U.S. government's intention to complete privatization of DNS governance by transferring its stewardship role to ICANN by 2006, conditional upon ICANN's satisfying certain pre-conditions.
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From page 218... ...
government, the likely outcomes will be a continuation of the Department of Commerce's stewardship role and a basic reconsideration of how DNS governance should be organized. A transfer of stewardship from the DOC will leave ICANN (and another organization if stewardship is kept separate)
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From page 219... ...
5.3.1 Current Situation: Diverse Autonomy Description The effective daily operation of the root name servers, described in "The Root Name Servers" in Section 3.3.2, lies squarely in the hands of the root name server operators. The operating organizations have taken on the responsibility voluntarily, are not compensated by users for their base operations (although all are subsidized by their home institutions or out
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From page 220... ...
Although ICANN's MoU with the DOC48 assigns it the responsibility to manage the root name server system, its authority, as noted in "Selecting the Root Name Server Operators" in Section 3.3.3, has not been sufficient to enable it to manage or even regulate the root name server operators directly. The recent extension of the MoU places emphasis on ICANN collaborating with the DOC on "operational procedures for the root name server system, including formalization of relationships under which root name servers throughout the world are operated and continuing to promote best practices used by the root system operators." 49 To increase its authority, ICANN has established the DNS Root Server System Advisory Committee,50 has sought to enter into formal agreements with each of the 11 other root name server operators,51 and has prepared a draft "Memorandum of Understanding Concerning Root Nameserver Operation."52 However, it has thus far been unable to complete an agreement with any of the operators.
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From page 221... ...
, the operators have effectively multiplied the number of root name servers severalfold, reducing the vulnerability of the system to denial-of-service attacks, improving the global accessibility of the root, and moderating the political pressure for relocation of the core 13 root name servers. The root name server operators assumed their responsibilities and, with a modest number of changes, have successfully operated within the context of Internet culture that favors informal, voluntary, and non-bureaucratic institutions run by technical specialists with primarily altruistic motives.
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From page 222... ...
But despite that fact that the current arrangement is functioning well, it might run into difficulties if for some reason the root name servers' performance deteriorated or some of the operators resigned. Moreover, ICANN is obliged under the MoU to try to take a more formal role in root name server operations.
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From page 223... ...
government agencies that run root name servers, for example, would probably not legally be able to give up their autonomy in exchange for a financial inducement, especially from a private organization. They would have to be replaced by non-governmental organizations, and that would probably require the agreement of the U.S.
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From page 224... ...
However, since increasing competition in the provision of DNS services is one of the stated goals of the DOC, the committee has created an example of what a straightforward approach to such competition might mean for root name services.57 A less straightforward example, which is actually being implemented, is also described. B1: Competing Root Name Server Systems In the most straightforward form of market for root name service, competition would entail having two or more distinct groups offering access to the authoritative root zone file.
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If there is one authoritative root zone file, then there is only one set of IP addresses that it can contain and, therefore, only one set of root name servers. Even if these technical problems could be overcome, two major operational problems would remain.
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From page 226... ...
Thus, it provides most of the benefits of model B1, "Competing Root Name Server Systems," without its difficulties. Alternative C: Distributed Root Zone File Description A third alternative, which might avoid the difficulties of regulation or competing root name servers, would be for ISPs and organizational intranets to obtain copies of the root zone file from ICANN (through VeriSign's distribution server)
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From page 227... ...
The current public root name servers could be retained for use by small and less technically skilled ISPs and intranets, but would be scaled down to serve the smaller load. Evaluation The wide distribution of the root zone file and root name servers would significantly enhance the security of the root and the reliability of its operation, in much the same way that anycast satellite sites already have done, but to an even greater extent.
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Distributed root B1. Competing root name servers zone file systems
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then direct IANA to enter the address of the new operator in the root zone file. Conclusion: Any central source of funds to compensate all the root name server operators for their services is likely to carry an unacceptable regulatory or control role for the funding organization and reduce the diversity of support that is one of the strengths of the current arrangement.
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From page 230... ...
Although the demand for domain names is not growing as rapidly as it did in those very early days, there remains a strong interest in adding gTLDs to the root as well as a strong counterbalancing interest in moderating such additions. In response to the pressure to add new gTLDs and to a requirement in its 2003 MoU with the DOC, ICANN agreed60 to deliver by September 2004 a comprehensive evaluation of: · "The potential impact of new gTLDs on the Internet root server system and Internet stability" and · "Potential consumer benefits/costs associated with establishing a competitive environment for TLD registries." It also committed to: · "Creation and implementation of selection criteria for new and ex isting TLD registries, including public explanation of the process, selection criteria, and the rationale for selection decisions," and · "Recommendations from expert advisory panels, bodies, agencies or organizations regarding economic, competition, trademark, and intellectual property issues." To fulfill this commitment, ICANN at its October 2003 meeting launched a strategic initiative to allow new generic top-level domains.61 The initiative comprises two stages intended "to move to the full global 60 Reported in ICANN board resolutions at the ICANN meeting in Carthage, Tunisia, October 31, 2003, available at |
From page 231... ...
Thus, the question of adding gTLDs is timely and open to careful examination. Although ICANN has accepted the view that new gTLDs should be added and is employing one specific means for doing so, it is useful for a full understanding of the issues involved to take one step back and consider first the fundamental questions: Should new gTLDs be added to the root zone and, if so, how many and how fast?
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From page 232... ...
The committee did not find any purely technical reasons that the root name servers could not provide the same level of response with a much larger root zone file. Indeed, the ability of the .com name servers to respond to billions of queries a day against the .com zone file, with more than 30 million entries, is a demonstration of the technical capacity that could be applied to the root zone, if necessary.
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Committee View In light of these considerations, several members of the committee hold the view that an extremely cautious approach should be taken toward additions to the root zone file. Their preference would be for no additions at all.
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From page 234... ...
In their view, such failures would be a reasonable price to pay for clarifying and meeting user needs, many of which may be latent -- unrecognized even by the potential beneficiaries. Advocates of this position, however, generally acknowledge that to protect domain name registrants in new gTLDs, registry contracts should require zone file escrow and agreements with other registries to assume responsibility in case a gTLD were to fail.
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65 See Jonathan Zittrain and Benjamin Edelman, "Survey of Usage of the .BIZ TLD," available at |
From page 236... ...
109. 71Summit Strategies International, "Evaluation of New gTLDs," 2004, p.
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From page 237... ...
. trying to attract new users and uses to the DNS, and allowing trademark holders to claim priority registration of the same names in new TLDs."75 And it observes that the number of sunrise registrations76 in the new gTLDs that used such a process "has turned out to be much smaller than anticipated."77 More generally, holders of existing domain names that have built a reputation could find the value of that reputation reduced as similar sites proliferate.
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From page 238... ...
, the root zone could become comparable to the .com gTLD, which would seem to have uncertain benefits, while threatening considerable upheaval in the technical operations of the DNS and administrative processes of ICANN. However, the imposition of a restriction on the allowable number and rate of additions, as suggested by technical and operational considerations, would alleviate this risk.
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From page 239... ...
5.4.2 If New gTLDs Are to Be Added, What Types Should They Be, and How Should They and Their Operators Be Selected? If new gTLDs are to be added to the root zone, there remain the questions of deciding which types of gTLDs should be added and which entities should be selected to operate the associated registries.
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From page 240... ...
Moreover, there is nothing to exclude a Web site having, say, both .org and .edu domain names, even if both were strictly restricted to appropriate registrants. So the best that an adherent to this view could hope for would be that each new gTLD would be restricted to a specific class whose membership could be inferred from the domain name (e.g., names such as .travel, .xxx, .library, and .health)
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From page 241... ...
To the advocates of this approach, opening a new gTLD and then closing it down because of an insufficient number of registrations would be an acceptable outcome, assuming (as noted above) that zone file escrow and alternate registry provisions could be made to protect domain name holders for some period of time after the closure.
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From page 242... ...
There are downsides to comparative hearings, however, as they can be subject to capture by interest groups. Furthermore, the real decision process may not be transparent, and thus may be perceived as arbitrary and unfair, especially by the losers.
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In principle, auctions could be designed to choose winners on the basis of who can best minimize prices (say, for example, the price of a domain name registration)
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However, the August 2004 report published by ICANN that evaluated the policy and legal issues of 80 Working Party on Telecommunication and Information Services Policies, "Generic Top Level Domain Names: Market Development and Allocation Issues" July 13, 2004, OECD Directorate for Science, Technology and Industry, available at |
From page 245... ...
Provision of ICANN-policy-compliant Whois service In light of the prior discussions of the types of gTLDs to be added and their potential value, it is useful to examine the specifics under topic 4a, addition of new value to the Internet name space. The subtopics are: 82 Summit Strategies International, "Evaluation of New gTLDs," 2004, pp.
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85 Summit Strategies International in Washington, D.C. See Sarah Lai Stirland, "DomainName Registry Expansion Process Underway," National Journal Tech Daily, May 26, 2004.
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Although ICANN adhered to the comparative hearing approach in this selection process, it significantly reduced the use of staff and board judgment and relied instead on the judgment of independent outside evaluators using an explicitly defined set of criteria. By doing so and by giving applicants the opportunity to revise and resubmit their applications, ICANN increased the apparent transparency (although keeping evaluators anonymous)
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From page 248... ...
Forty new gTLDs would be made available for award each year. That number was chosen based on advice from members of the technical community with the goals of retaining the hierarchical structure of the DNS and avoiding the introduction of errors into the root zone through too many changes, made too fast.
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From page 249... ...
Mueller and McKnight suggest that the proceeds of the auction (or the reserve price) go to maintaining and managing the root, with a portion reserved for the root name server operators.
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From page 250... ...
The user community needs a certain process for identifying pro spective names and a certain process for selecting sponsors/registries to operate those names.90 Under this approach all new domain names would have to satisfy six principles: 1. Differentiation: be clearly differentiated from other gTLDs, 2.
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From page 251... ...
New Whois databases will be verified and therefore accurate."93 The BC proposal recommends separation of the functions of sponsor and registry, similar to but less specific than the Rader proposal (alternative B) described above.
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From page 252... ...
Comparison of the Four Alternatives The four alternatives presented above for adding new gTLDs are compared in Table 5.3 on two dimensions: desirable structure of the name space and the means of selecting gTLD operators. Both the BC and the ICANN alternatives anticipate only sponsored and restricted gTLDs, whereas the Mueller and McKnight and the Rader proposals allow, but do not require, them.
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From page 253... ...
· What is done with the proceeds of a "high bid wins" auction. Would the proceeds go to cover ICANN operating costs or be allocated to other organizations, such as the root name server operators or the IAB/IETF in support of technical activities related to ICANN responsibilities?
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From page 254... ...
On the one hand, some nations97 have expressed concern that the U.S. government, acting through ICANN, could unilaterally remove their ccTLDs from the root zone file and, therefore, cut them off from the Internet.
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From page 255... ...
Yet, through its control of the root zone file, ICANN does have the sole responsibility for recommending delegations and redelegations of ccTLDs to the DOC. So the policy issues that face ICANN are whether its responsibility for the root requires that it work to increase its oversight and authority over the ccTLDs and, if so, what form such oversight should take and how it can be implemented.
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From page 256... ...
"100 and the "Principles and Guidelines for the Delegation and Administration of Country Code Top Level Domains," a revision of principles first published in 2000, which was presented by the Governmental Advisory Committee at the ICANN meeting in April 2005.101 The delegations in the early days of the DNS placed highest priority on the responsibility of the manager and less on notions of ownership. However, with the current economic, political, and social importance of the Internet to all nations, matters of accountability to the local government, local Internet community, and the global Internet community have assumed much greater significance.
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From page 257... ...
Second, that they contribute proportionately105 to the overall costs of maintaining the DNS root zone file and ccTLD database in which they are listed. Third, that they accept ICANN's authority to decide on delegations and redelegations when controversies arise.
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From page 258... ...
In their view, ICANN should restrict its operational responsibilities to maintaining the ccTLD database (containing Whois information about the ccTLDs) and the corresponding root zone file entries and ensuring that the ccTLDs satisfy minimal technical requirements to function within the global DNS.
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From page 259... ...
Alternative A: "Thick" ICANN Description The model initially implemented by ICANN has had ICANN attempting to achieve its goals by playing a strong role in the oversight of the ccTLDs: maintaining the ccTLD database and ccTLD entries in the root zone file, making recommendations to the DOC concerning delegations and redelegations, establishing standards for ccTLD performance, and inducing compliance through MoUs with the ccTLD managers or the relevant governments. Currently, it is seeking through the newly established ccNSO to engage the more active participation of the ccTLDs in ICANN activities.
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From page 260... ...
Rather, they would be made, in the first instance, by the local Internet community relying on national laws and processes as necessary, and if that failed, by a process established by the ccTLD community. In this model, the ccTLDs would agree to pay the cost incurred by ICANN in maintaining the database of ccTLDs and ccTLD entries in the root zone file through a fee based on the size of each ccTLD's membership.
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From page 261... ...
That organization would be responsible for maintaining an up-to-date ccTLD database and sending the appropriate information to ICANN for entry into the root zone file. Presumably, there would be a corresponding agreement with the DOC (as long as it retained its stewardship role)
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From page 262... ...
. Three models assume that ICANN will continue to manage the ccTLD database.
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From page 263... ...
Conclusion: If the creation of the ccNSO does not result in increased participation by the ccTLDs in ICANN policy making, then ICANN may find itself subject to increasing pressures to constrain its role to that of gTLD management and root zone file record keeping. 5.6 RESOLUTION OF CONFLICTS OVER DOMAIN NAMES Issue: Does the UDRP need to be improved?
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From page 264... ...
for dispute resolution. 5.6.1 Assessment of the UDRP Many observers believe that the UDRP has functioned well to resolve disputes over domain names.111 However, there are others who believe that the current system is biased toward the interests of trademark holders and away from the interests of individuals.112 Notwithstanding its perceived disadvantages, numerous decisions have been rendered under 110ICANN, "Staff Manager's Issues Report on UDRP Review," August 2003, available at |
From page 265... ...
Domain name disputes brought under the UDRP are generally resolved within 45 to 60 days of the domain name dispute provider's receipt of the complaint. In addition, the UDRP is not limited to registered trademarks identical to the domain name, and it allows trademark owners to file a complaint against a registrant of a domain name that is "confusingly similar" to the owner's mark.
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From page 266... ...
Moreover, complainants see disadvantages in the limitations on remedies (no potential damage recovery no matter how egregious the respondent) and in panels' inconsistent definitions of critical terms, such as "confusing similarity," "use," and "bad faith." 113 ICANN, "Rules for Uniform Domain Name Dispute Resolution Policy," October 24, 1999, Paragraph 12.
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From page 267... ...
Although the UDRP allows administrative proceedings to be conducted in languages other than English, the UDRP itself is written in English. Many non-native-English speakers who register domain names with registrars that do not provide translated versions of their registration agreements or the UDRP may not be aware that they are subject to the provisions of the UDRP or that they should avoid selecting a domain name that violates the trademark rights of other parties.114 Additionally, since the complainant selects the dispute resolution service provider, it is possible for complainants to "forum shop" (i.e., to select a provider more likely to favor the complainant, or which has been more sympathetic to similar complaints in the past)
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From page 268... ...
Conclusion: The UDRP has generally satisfied the need for an effective and cost-efficient means of resolving disputes concerning domain names; however, it has weaknesses for which remedies have been proposed. 5.6.2 Proposed Improvements to the UDRP In response to the perceived deficiencies of the current UDRP, a number of improvements have been proposed: a better, more consistent application of arbitral precedents; an appeals process; required use of threemember panels; improved training and self-help tools; and revised funding and compensation structures.
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From page 269... ...
As noted above, an appeals process would have the likely effect of encouraging better and more consistent use of arbitral precedents. But support for an appeals process has been limited, with the emphasis being placed on resolving such issues through a national court proceeding -- rather than creating another layer to a relatively quick and inexpensive dispute resolution process.
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From page 270... ...
One possible reason for this oversight is that some panelists may lack a technical understanding of how the DNS and the Internet operate. Thus, some believe, UDRP proceedings could be improved by enhancing the training requirements for panelists in the technology underlying the DNS, the manner in which domain names can be used, and the application of the policies and rules applicable to domain name disputes.
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From page 271... ...
Recommendation: Arbitral domain name dispute resolution processes, rather than national courts, should continue to be encouraged as the initial and primary vehicle for resolving most disputes associated with the rights to domain names. Recommendation: The feasibility and desirability of five specific UDRP improvements should be further considered by ICANN: improving consistent use of arbitral precedents, establishing an internal appeals process, using three-member panels, improving panelist knowledge about the technology underlying the DNS, and improving the nature and structure of incentives in the process.
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From page 272... ...
That may or may not be the best possible model, but the alternatives, such as having domain names appear as reserved in two or more packages, with a priority order, lead to administrative, policy, or database management nightmares. But there are constituencies that oppose such systems, some of them on the grounds that dispute resolution is adequate and others, perhaps, on the more cynical grounds that letting things go to dispute resolution permits them to collect registrar and registry fees on the names whether they are valid or not and encourages even more business in defensive registrations.
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From page 273... ...
For example, when Whois was used as a Unix command, trademark owners were able to retrieve a wide range of information, including contact information of the domain name registrant and a list of all domain names registered by one particular registrant. Later, and until 2001, Network Solutions, Inc.
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From page 274... ...
Indeed, registrants may provide fictitious names and addresses and fail to update any of their contact information promptly, if ever. ICANN's Registrar Accreditation Agreement contractually binds each of its accredited registrars to investigate and correct any reported inaccuracies in contact information for the domain names they maintain.
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From page 275... ...
are often framed in adversarial terms. On the one hand, trademark holders and their representatives want comprehensive and free access to all Whois data and would like improvements in Whois services, such as higher quality in the Whois data and the ability to consolidate data across Whois services more easily.
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From page 276... ...
· Local law.132 In some cases, national privacy laws conflict with the provisions of ICANN's agreement requiring the registrars to collect and 129 In a UDRP proceeding, for example, trademark owners are often required to show a "pattern of conduct" by the respondent of registering domain names incorporating the trademarks of other parties. Unless a trademark owner can guess the domain names registered by the respondent, it can incur considerable costs in obtaining this information, since the respondent may have used several different registrars in registering its domain names or provided slightly different contact details for each registration.
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From page 277... ...
However, to the extent that sensitive data (generally, personal contact information) is publicly available through registry/registrar Whois services, TF1 members agreed that at a minimum the requestor of Whois information should be required to identify (and authenticate)
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From page 278... ...
, and its responses are similarly in ASCII. But in an internationalized environment, domain names will not all be written in ASCII (although, as explained in Section 4.3, they will all be mapped into ASCII strings)
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From page 279... ...
5.7.3 Conclusion and Recommendation The issues concerning the accuracy of and access to Whois data engage the interests of many stakeholders with legitimate but sometimes conflicting interests. They entail actual and potential conflicts with differing national privacy laws.
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Recommendation: Future systems that support Whois data management and access should be designed to allow for gradations in access while maintaining some degree of free access to Whois information. The Whois protocol will have to be replaced to accommodate the desired gradations in access.136 136 The IETF had, by October 2004, approved as "standards-track" documents (see Box 3.3)
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Key Terms
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