[Senate Hearing 112-394]
[From the U.S. Government Publishing Office]
S. Hrg. 112-394
ICANN'S EXPANSION OF TOP LEVEL DOMAINS
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HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
DECEMBER 8, 2011
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
U.S. GOVERNMENT PRINTING OFFICE
74-251 PDF WASHINGTON : 2012
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20402-0001
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas,
JOHN F. KERRY, Massachusetts Ranking
BARBARA BOXER, California OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida JIM DeMINT, South Carolina
MARIA CANTWELL, Washington JOHN THUNE, South Dakota
FRANK R. LAUTENBERG, New Jersey ROGER F. WICKER, Mississippi
MARK PRYOR, Arkansas JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri ROY BLUNT, Missouri
AMY KLOBUCHAR, Minnesota JOHN BOOZMAN, Arkansas
TOM UDALL, New Mexico PATRICK J. TOOMEY, Pennsylvania
MARK WARNER, Virginia MARCO RUBIO, Florida
MARK BEGICH, Alaska KELLY AYOTTE, New Hampshire
DEAN HELLER, Nevada
Ellen L. Doneski, Staff Director
James Reid, Deputy Staff Director
Todd Bertoson, Republican Staff Director
Jarrod Thompson, Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel and Chief Investigator
C O N T E N T S
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Page
Hearing held on December 8, 2011................................. 1
Statement of Senator Klobuchar................................... 1
Statement of Senator Rockefeller................................. 46
Statement of Senator Boozman..................................... 48
Statement of Senator Cantwell.................................... 50
Statement of Senator Ayotte...................................... 53
Witnesses
Fiona M. Alexander, Associate Administrator, Office of
International Affairs, National Telecommunications and
Information Administration, U.S. Department of Commerce........ 1
Prepared statement........................................... 3
Kurt Pritz, Senior Vice President, Stakeholder Relations,
Internet Corporation for Assigned Names and Numbers (ICANN).... 6
Prepared statement........................................... 7
Angela F. Williams, General Counsel, YMCA of the USA............. 21
Prepared statement........................................... 22
Daniel L. Jaffe, Executive Vice President, Government Relations,
Association of National Advertisers (ANA)...................... 25
Prepared statement........................................... 26
Esther Dyson, Founding Chairman of ICANN, 1998-2000; currently an
Independent Angel Investor..................................... 42
Prepared statement........................................... 44
Appendix
Response to written questions submitted to Fiona Alexander by:
Hon. Maria Cantwell.......................................... 69
Hon. Olympia J. Snowe........................................ 70
Response to written questions submitted to Kurt Pritz by:
Hon. Barbara Boxer........................................... 72
Hon. Maria Cantwell.......................................... 75
Hon. Claire McCaskill........................................ 78
Hon. Mark Warner............................................. 82
Hon. Olympia J. Snowe........................................ 89
Response to written questions submitted by Hon. Olympia J. Snowe
to Angela Williams............................................. 96
Response to written question submitted to Daniel L. Jaffe by:
Hon. Maria Cantwell.......................................... 98
Hon. Claire McCaskill........................................ 99
Hon. Olympia J. Snowe........................................ 99
Response to written question submitted to Esther Dyson by:
Hon. Maria Cantwell.......................................... 103
Hon. Olympia J. Snowe........................................ 104
Paul Garrin, Founder, Name.Space, Inc., prepared statement....... 106
Letter dated December 14, 2011 from Beau Brender, Chair, North
American Regional At-Large Organization (NARALO) and Dr. Oliver
MJ Crepin-Leblond, Chair, At-Large Advisory Committee, ICANN to
Hon. John D. (Jay) Rockefeller IV.............................. 108
Letter dated December 8, 2011 from Stephen A. Cox, President and
CEO, Council of Better Business Bureaus (CBBB) to Hon. Jay
Rockefeller IV and Hon. Kay Bailey Hutchison................... 109
Letter dated December 7, 2011 from Rebecca MJ Gould, Vice
President, Global Government Relations and Public Policy, Dell,
Inc. to Senator Jay Rockefeller and Senator Kay Bailey
Hutchison...................................................... 110
Jim Gibbons, President and CEO, Goodwill Industries
International, prepared statement.............................. 111
Letter dated December 12, 2011 to Hon. John D. Rockefeller IV
from Jennifer Dexter, Assistant Vice President, Government
Relations, Easter Seals........................................ 113
National Restaurant Association, prepared statement.............. 113
Josh Bourne, President, Coalition Against Domain Name Abuse
(CADNA), prepared statement.................................... 114
Letter to Hon. John D. Rockefeller IV and Hon. Kay Bailey
Hutchison from Alexa Raad, Chief Executive Officer, Architelos;
Alexander Siffrin, Chief Executive Officer, Key Systems GmbH;
Andreas Schreiner, Chief Executive Officer, lnterNetWire
Communications; GmbH Angie D. Graves, President, WEB Group,
Inc.; Antony Van Couvering, Chief Executive Officer, Minds +
Machines; Bhavin Turakhia, Chief Executive Officer and Founder,
Directi; Bret Fausett, President and Founder, Internet Pro APC;
Clyde Beattie, Principal, The Yorkland Group; Dr. Liz Williams,
Chief Executive Officer, Sedari; Elliot Ness, Chief Executive
Officer, Tucows; John Styli, Chief Operating Officer, Far
Further; Jonathon Nevett, President, Domain Dimensions, LLC;
Kevin Saimon, President, Urban Brain; Krista Papac, Chief
Strategy Officer, ARI Registry Services; Loren Salman, Chief
Executive Officer, Far Further; Mason Cole, Principal, 5x5
Communications; Michael Berkens, Director, RightOfTheDot LLC;
Mike Rodenbaugh, Founder, Rodenbaugh Law; Monte Cahn,
President/Director, RightOfTheDot LLC; Nacho Amadoz, Legal &
Policy Director, Fundacio PuntCAT; Paul Stahura, Chief
Executive Officer, Donuts Inc.; Richard Wilhelm, Principal, RJW
Partners, LLC; Robert Connelly, President, Domains Only; Robin
Gross, Executive Director, IP Justice; Steve Miholovich, Sr.
Vice President Sales & Marketing, Safenames Ltd.; Susan
Prosser, Vice President, Marketing, Domain Tools; Tad Yokoyama,
President, Interlink Co., Ltd.; William Mushkin, Chief
Executive Officer and Founder, Name.com........................ 116
ICANN'S EXPANSION OF TOP LEVEL DOMAINS
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THURSDAY, DECEMBER 8, 2011
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:48 a.m. in
room SR-253, Russell Senate Office Building, Hon. Amy
Klobuchar, presiding.
OPENING STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. The Committee will come to order. We
have all our witnesses here. Thank you very much. We're in a
time crunch and I know that Senator Rockefeller's going to be
joining us shortly, as well as some other Senators. But I
wanted to get this going, in the interest of time, because
we're going to have to end at 10 minutes to twelve o'clock.
This is a very important hearing and I wanted to first
introduce our witnesses. We first have Ms. Fiona Alexander.
She's the Associate Administrator for the Office of
International Affairs in the National Telecommunications and
Information Administration.
We also have Ms. Angela Williams. Ms. Williams is the
General Counsel for the YMCA of the U.S.A. and is also speaking
on behalf of the Not-for-Profit Operational Concerns
Constituency.
We have Mr. Daniel Jaffe. Mr. Jaffe is an Executive Vice
President for Government Relations for the Association of
National Advertisers. He's also speaking on behalf of the
Coalition for Responsible Internet Domain Oversight.
We also have Ms. Esther Dyson. Ms. Dyson was the Founding
Chairman of the ICANN's board of directors. She served in that
role from 1998 to 2000.
Then we also have with us Mr. Kurt Pritz. Mr. Pritz is
Senior Vice President for Stakeholder Relations for the
Internet Corporation for Assigned Names and Numbers, also known
as ICANN.
Do you want to begin? Each witness has 5 minutes, and we
will start with Ms. Alexander.
STATEMENT OF FIONA M. ALEXANDER, ASSOCIATE
ADMINISTRATOR, OFFICE OF INTERNATIONAL AFFAIRS
NATIONAL TELECOMMUNICATIONS AND INFORMATION
ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE
Ms. Alexander. Good morning, Senator Klobuchar. I
appreciate the opportunity to talk to you today on behalf of
NTIA regarding ICANN's planned expansion of the Internet's
domain name system through the introduction of new generic top-
level domains, or new gTLDs.
Since its inception in 1998, ICANN has been charged with
promoting competition in the registration of domain names while
ensuring the security and stability of the DNS. In 2000 and
2003, ICANN conducted a limited expansion of gTLDs. In 2005 it
initiated the process we are discussing today. After 6 years of
multi-stakeholder discussion, including input from governments
through the governmental advisory committee, ICANN approved the
rules for the new gTLD program in the form of an applicant
guidebook.
Expansion of the gTLD space is expected to provide a
platform for city, geographic, and internationalized domain
names, among other things. This type of change to the DNS is
expected to enhance consumer trust and choice and reinforce the
global nature of the Internet. It is also expected that a
portion of applications will either be generic words or brand-
focused as part of business development, investment, and
startup plans.
Within ICANN, the GAC provides governments a meaningful
opportunity to participate in the development of policies
related to DNS issues. Over the last 6 years, NTIA has actively
engaged with its counterparts in the GAC in developing advice
to inform this program.
In December 2010, the GAC developed a scorecard of the
outstanding issues governments had with the program. Between
February and June of this year, GAC representatives from around
the world met with the ICANN board in extended face-to- face
discussions to review the GAC scorecard and identify specific
differences between GAC advice and existing versions of the
applicant guidebook. These unprecedented exchanges resulted in
the adoption of a significant number of changes to the program.
NTIA believes that ICANN improved the new gTLD program by
incorporating a significant number of proposals from the GAC,
including providing law enforcement and consumer protection
authorities with significantly more tools than those available
in existing gTLDs. The fact that not all of GAC's proposals
were adopted as originally offered does not represent a failure
of the process or a setback to governments. Rather, it reflects
the reality of a multi-stakeholder model.
As a member of the GAC, NTIA will continue to actively
monitor and participate in discussions related to the expansion
of new gTLDs. NTIA appreciates that certain trademark owners
and other stakeholders have expressed concerns regarding the
program. Safeguarding the rights of trademark owners and
ensuring appropriate consumer protections as this process moves
forward remains a top priority. As such, NTIA is committed to
working with U.S. industry and other stakeholders as the new
gTLD program unfolds to mitigate any unintended consequences.
In addition, NTIA intends to continue to collaborate with
U.S. Government agencies to track their experiences and to
coordinate the collection of data regarding the effects on
consumers and business users. In particular, NTIA, working with
other agencies, will focus on ensuring that law enforcement
concerns are addressed through strengthened registry and
registrar accreditation agreements and enhanced contract
compliance.
NTIA will also be encouraging interested parties to
collaborate in the development of metrics to facilitate the
review of the new gTLD program. We feel strongly that the
review must be informed by fact-based, real-time experiences
that can be captured by data from a variety of sources.
NTIA is dedicated to maintaining an open, global Internet
that remains a valuable tool for economic growth, innovation,
and the free flow of information, goods, and services on line.
We believe the best way to achieve this goal is to continue to
actively support and participate in multi-stakeholder Internet
governance processes such as ICANN.
Thank you again for the opportunity to testify this
morning. NTIA looks forward to working with Congress, U.S.
businesses, individuals, and other stakeholders to preserve and
enhance the multi-stakeholder model that has been the hallmark
feature of global Internet institutions that have truly been
responsible for the success of the Internet.
I'll be happy to answer any questions.
[The prepared statement of Ms. Alexander follows:]
Prepared Statement of Fiona M. Alexander, Associate Administrator,
Office of International Affairs, National Telecommunications and
Information Administration, U.S. Department of Commerce
Introduction
Good morning, Chairman Rockefeller and members of the Committee. I
appreciate the opportunity to talk to you today on behalf of the
National Telecommunications and Information Administration (NTIA)
regarding the planned expansion of the Internet's domain name system
(DNS) by the Internet Corporation for Assigned Names and Numbers
(ICANN). NTIA is the Executive Branch expert on issues relating to the
DNS and supports a multi-stakeholder approach to the coordination of
the DNS to ensure the long-term viability of the Internet as a force
for innovation and economic growth. Working with other stakeholders,
NTIA is developing policies to preserve an open, interconnected global
Internet that supports continued innovation and economic growth,
investment, and the trust of its users. This multi-stakeholder model of
Internet policymaking--convening the private sector, civil society as
well as governments to address issues in a timely and flexible manner--
has been responsible for the past success of the Internet and is
critical to its future.
I will begin today by providing context for the announced expansion
of generic top level domains (gTLDs) used on the Internet, detail the
specific efforts of NTIA as the U.S. Government representative to the
Governmental Advisory Committee (GAC) to improve the ICANN program, and
then describe the tools available to NTIA and the global community to
manage any challenges that may arise.
Context for Planned Expansion of the Domain Name System
ICANN is a not-for-profit corporation based in California that is
responsible for coordinating the Internet's DNS. The DNS is a critical
component of the Internet infrastructure. It works like a telephone
directory, allowing users to reach websites using easy-to-understand
domain names (e.g., http://www.commerce.gov) rather than the numeric
network server addresses (e.g., http://170.110.225.163) necessary to
retrieve information on the Internet. ICANN develops policies through a
bottom-up, multi-stakeholder led process with an international
community of stakeholders that mirrors the global nature of the
Internet. On September 30, 2009, NTIA, on behalf of the Department of
Commerce, entered into an Affirmation of Commitments (Affirmation) with
ICANN that established ICANN's multi-stakeholder, private-sector led
model as the long-lasting framework for the technical coordination of
the Internet DNS.\1\ The Affirmation completed the transition begun in
1998 by a Memorandum of Understanding (MOU) between the Department and
ICANN that was amended several times.
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\1\ See http://www.ntia.doc.gov/files/ntia/publications/
affirmation_of_commitments_2009
.pdf.
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Since its inception in 1998, ICANN has been charged with promoting
competition in the registration of domain names, while ensuring the
security and stability of the DNS. The goal to establish new gTLDs
beyond .com, .edu, .gov, .int, .mil, .net, and .org began over a decade
ago. In 2000 and 2003, ICANN conducted a limited expansion of generic
top level domain names. Resulting in the addition of .biz, .info,
.name, .pro, .aero, .coop, .museum, .asia, .cat, .jobs, .mobi, .tel,
and .travel gTLDs to the DNS. In 2005, it initiated a process to
develop the policies and procedures necessary to introduce an unlimited
number of new gTLDs. After six years of multi-stakeholder policy
development and implementation planning, including input from
governments through the GAC, the ICANN Board of Directors (Board)
approved the rules for the new gTLD program in June 2011, publishing
the rules in the form of an Applicant Guidebook.\2\
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\2\ See http://newgtlds.icann.org/applicants/agb.
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Expansion of the gTLD space is expected to provide a platform for
city, geographic, and internationalized domain names, among other
possible top level domain strings. Expansion of the new gTLD space has,
since its inclusion in the original MOU with ICANN, been intended to
allow new TLD operators to create and provide content in native
languages and scripts, otherwise known as Internationalized Domain
Names or IDN, in addition to new gTLDs in ASCII or Latin scripts. This
type of change to the DNS is expected to enhance consumer trust and
choice, and reinforce the global nature of the Internet. It is also
expected that a portion of applications will be either generic words or
brand-focused as part of business development, investment, and startup
plans.
NTIA as a Member of the Governmental Advisory Committee (GAC)
The multi-stakeholder policymaking process seeks to involve all
stakeholders, including governments, to achieve policy outcomes with
greater speed and flexibility than traditional regulatory structures.
Within ICANN, the GAC provides governments a meaningful opportunity to
participate in the development of policies related to DNS issues. NTIA
represents the U.S. Government in the GAC, which currently has over 100
members.
Over the last six years, NTIA has actively engaged with its
counterparts in the GAC in developing consensus advice to inform
ICANN's policy development and implementation program for the
introduction of new gTLDs. This included the adoption by the GAC in
March 2007 of ``GAC Principles Regarding New gTLDs'' that were intended
to inform the on-going policy development process underway in ICANN's
Generic Names Supporting Organization (GNSO).\3\ The GAC progressively
refined its advice to the ICANN Board and community through a series of
communiques issued at the close of each of its meetings between March
2007 and December 2010. This occurred as the new gTLD program advanced
from the GNSO policy recommendations that were adopted by the ICANN
Board in June 2008 to the implementation proposals developed by ICANN
staff and posted serially for public comment.
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\3\ See http://www.icann.org/en/topics/new-gtlds/gac-principles-
regarding-new-gtlds-28mar07-en.pdf.
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In December 2010, the GAC developed a ``Scorecard'' of these
outstanding issues governments had with the pending Draft Applicant
Guidebook and requested direct discussions between the GAC and the
ICANN Board to resolve them.\4\ Among these issues were:
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\4\ See http://www.icann.org/en/topics/new-gtlds/gac-scorecard-
23feb11-en.pdf.
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objection procedures for governments,
procedures for the review of sensitive strings,
root zone scaling,
market and economic impacts,
registry-registrar separation,
protection of trademark rights and other intellectual
property owners,
consumer protection issues,
post-delegation disputes with governments,
use and protection of geographic names,
legal recourse for applicants,
providing opportunities for stakeholders from developing
countries,
law enforcement due diligence recommendations, and
the need for an early warning mechanism for applicants to
identify whether a proposed string would be considered
controversial or to raise sensitivities.
Between February 2011 and June 2011, GAC representatives from
around the world met with the ICANN Board in extended face-to-face
discussions to review the GAC Scorecard and to identify specific
differences between GAC advice and the existing version of the
Applicant Guidebook. The purposes of the sessions were to promote joint
understanding of the issues and arrive at an agreed-upon resolution of
those differences wherever possible. These unprecedented GAC-ICANN
Board exchanges resulted in the adoption by the ICANN Board of a
significant number of GAC recommendations in the final Applicant
Guidebook. Equally importantly, the GAC's advice established a solid
foundation for the subsequent review of the new gTLD program by
identifying markers or guideposts of government expectations that the
benefits must not be outweighed by risks to users of the DNS.
NTIA believes that ICANN improved the new gTLD program by
incorporating a significant number of proposals from the GAC. ICANN's
new gTLD program also now provides law enforcement and consumer
protection authorities with significantly more tools than those
available in existing gTLDs to address malicious conduct. The fact that
not all of the GAC's proposals were adopted as originally offered does
not represent a failure of the process or a setback to governments;
rather, it reflects the reality of a multi-stakeholder model.
Going Forward
As a member of the GAC, NTIA will continue to actively monitor and
participate in discussions related to the expansion of new gTLDs within
the ICANN process. NTIA appreciates that certain trademark owners and
other stakeholders have expressed concerns regarding the new gTLD
program. Safeguarding the rights of trademark owners and ensuring
appropriate consumer protections as this process moves forward remains
apriorit. As applications for strings that are identifiable brands,
products, or companies are introduced it will be important to ensure
that trademark owners are properly protected. NTIA is committed to
working with the U.S. industry and other stakeholders as the new gTLD
program unfolds to mitigate any unintended consequences. The
Affirmation sets up continuous multi-stakeholder review teams to
evaluate ICANN's performance, including a review of the new gTLD
program. This review will examine the extent to which the introduction
or expansion of gTLDs has promoted competition, consumer trust and
consumer choice, as well as effectiveness of the application and
evaluation process, and the safeguards put in place to mitigate issues
involved in the introduction or expansion. NTIA believes the review
provides an opportunity for stakeholders to further refine the new gTLD
program and make adjustments, as needed.
In addition, NTIA intends to collaborate with U.S. Government
agencies responsible for consumer and intellectual property protection,
competition policy, and law enforcement to track their experiences and
to coordinate the collection of data regarding the effects on consumers
and business users of the domain name system. In particular, NTIA,
working with other agencies, will focus on ensuring that law
enforcement concerns are addressed through strengthened Registry and
Registrar Accreditation Agreements and enhanced contract compliance.
NTIA will also be encouraging all interested parties to collaborate in
the development of metrics to facilitate the review of the new gTLD
program to which ICANN has committed. We feel strongly that the review
must be informed by fact-based, real-time experiences that can be
captured by data from a variety of sources.
Conclusion
NTIA is dedicated to maintaining an open, global Internet that
remains a valuable tool for economic growth, innovation, and the free
flow of information, goods, and services online. We believe the best
way to achieve this goal is to continue to actively support and
participate in multi-stakeholder Internet governance processes such as
ICANN. This is in stark contrast to some countries that are actively
seeking to move Internet policy to the United Nations. If we are to
combat the proposals put forward by others we need to ensure that our
multi-stakeholder institutions have provided a meaningful role for
governments as stakeholders. NTIA believes that the strength of the
multi-stakeholder approach to Internet policy-making is that it allows
for speed, flexibility, and decentralized problem-solving and stands in
stark contrast to a more traditional, top-down regulatory model
characterized by rigid processes, political capture by incumbents, and
in so many cases, impasse or stalemate.
Thank you again, Mr. Chairman for the opportunity to testify this
morning. NTIA looks forward to working with Congress, U.S. business,
individuals, and other stakeholders to preserve and enhance the
multistakeholder model that has been a hallmark feature of global
Internet institutions that have been responsible for the success of the
Internet.
I will be happy to answer any questions.
Senator Klobuchar. Thank you very much.
Mr. Pritz.
STATEMENT OF KURT PRITZ, SENIOR VICE PRESIDENT, STAKEHOLDER
RELATIONS, INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
(ICANN)
Mr. Pritz. Good morning, Senator. I am Kurt Pritz, the
Senior Vice President of Stakeholder Relations for ICANN, the
Internet Corporation for Assigned Names and Numbers, and I'm
very pleased to be testifying before you today.
After more than 7 years of policy development and
implementation planning, on January 12 next year ICANN will
start receiving applications for new top-level domains, known
as TLDs or gTLDs. TLDs are the names to the right of the dot,
such as .com or .org. ICANN carefully and cautiously developed
the requirements for the new gTLD program. And by ICANN, I mean
the global multi-stakeholder community made up of governments,
intellectual property experts, consumers, large and small
businesses, not-for-profit organizations, Internet security
experts, registrants, and Internet users.
The launch of the new gTLD program was part of ICANN's
founding mandate when it was formed by the U.S. Government over
12 years ago. That mandate is to introduce competition and
choice into the domain name system in a stable and secure
manner. There is every reason to believe that the benefits
offered by competition in virtually every other market will
apply to the introduction of new gTLDs.
Expanding the number of TLDs will encourage innovation and
result in competition and increased choice for Internet users.
The 7 years of policy work that led to the formation of the new
gTLD program was based upon this principle.
In the last decade, the number of domain name registrations
has increased nearly tenfold, enabling more than $3 trillion of
commerce annually. As with the introduction of any innovation,
new gTLDs will generate interest, excitement, and, yes, require
a period of learning. Internet users have already shown a great
adaptability and they will find value wherever it is created as
a result of this program.
The new TLDs that will come in under this program have
significantly increased safeguards compared to TLD registries
that exist today. There will be new and extensive protections
to trademark holders, including a universal trademark
clearinghouse, a rapid takedown process, and new methods of
recourse for law enforcement agencies. These new protections,
when combined with the distribution of domain names into many
new registries, will sharply reduce pressure for defensive
registrations.
New TLDs will also bring better consumer and security
protections. Security protection experts developed specific
measures to combat malicious conduct and provide law
enforcement authorities with more tools to fight malfeasance.
These include criminal background checks on applicants, a
requirement for DNSSEC deployment, the requirement for
maintenance of a thick WHOIS data base, and centralized access
to all TLD data.
What are some of these potential innovations? Here are some
published examples. Dot-brand type TLDs can diminish consumer
confusion and develop consumer awareness around the reliability
of the website. This is similar to the trust that your
constituents have today when visiting a dot-gov website.
Consumers know when they type in ``Senate.gov'' they are
reaching the domain of the U.S. Senate.
Financial industry participants are considering a financial
services TLD where banks and financial institutions can offer
greater trust to their customers, more secure transactions, and
control the data flow for those transactions. There are new
jobs already created and likely more to come. In preparation
for the launch of new TLDs, dozens of small businesses have
sprung up to help TLD applicants understand the opportunities
and potential benefits of new TLDs.
Lately, innovation has been limited to country code TLDs,
such as dot-co and dot-ly, that are developing business models
to meet world demand. These TLDs are not under contract with
ICANN and not required to offer the protections available in
the new gTLD program.
The important issues under discussion before this committee
have been the subject of discussion, debate, and compromise for
the past 7 years. Not-for-profit organization and trademark
holders, along with the rest of the ICANN community, provide
the focused and targeted input into the design of this program.
Their input has yielded significant improvements through seven
versions of the applicant guidebook. Consensus has been reached
across the spectrum of participants and the program is better
for it. Many stakeholders not represented at this table have
also participated in the program and are awaiting their
opportunity to take part.
Thanks for inviting me to testify. I'd be happy to answer
any questions you might have.
[The prepared statement of Mr. Pritz follows:]
Prepared Statement of Kurt Pritz, Senior Vice President, Stakeholder
Relations, Internet Corporation for Assigned Names and Numbers (ICANN)
Chairman, Ranking Member and members of the Committee, thank you
for the opportunity to address you today. I am here today representing
the Internet Corporation for Assigned Names and Numbers (ICANN). I am
Kurt Pritz, ICANN's Senior Vice President for Stakeholder Relations.
Among other responsibilities at ICANN, I manage the Program to
implement new Top-Level Domains (also referred to as new gTLDs), which
is the subject of this hearing.
I. New gTLDs: Safely Bringing Competition and Choice to the Internet
On June 20, 2011, the ICANN Board of Directors approved the
implementation of the New gTLD Program, the culmination of years of
policy development by the broad Internet community.\1\
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\1\ ICANN Board Resolution 2011.06.20.01, at http://www.icann.org/
en/minutes/resolutions-20jun11-en.htm.
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Now is the time for launching that program. It is the product of
well thought out, thoroughly debated policies that are designed to
benefit the billions of Internet users through increased competition,
choice and innovation. It is also designed to provide a safer, stable
marketplace through the implementation of rights protection mechanisms,
malicious conduct mitigation measures and other registrant protections.
ICANN extended the discussion to hear all those that wished to
participate, to all geographies and all stakeholders. Each issue was
thoroughly discussed, there have been no new issues raised. Now is the
time to realize the benefits of an expanded and safer marketplace.
The New gTLD Program was created through input across all sectors,
including Internet end users, global Fortune 500 businesses, small
businesses, trade associations, governments, non-commercial interests,
intellectual property experts, brand holders, Internet security
experts, ICANN registries and registrars, domain name registrants,
Internet service providers, technical experts, not-for-profit
organizations and more.
The planning for the New gTLD Program started in 2005 within
ICANN's consensus-based policy development process. Since 2008, the New
gTLD Program has been shaped through:
Seven versions of the Applicant Guidebook;
At least 59 explanatory memoranda and independent reports,
including 5 economic studies;
47 separate, extended public comment periods;\2\
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\2\ Comments came from multiple sources, including: NGOs and not-
for-profit organizations, such as the Red Cross and the International
Olympic Committee (IOC); governments, through the GAC and individually;
ICANN's constituencies, Supporting Organizations and Advisory
Committees; brand/mark holders, such as Microsoft, Yahoo, Time Warner,
AT&T, BBC, and IBM; industry associations, such as International
Trademark Association (INTA), World Intellectual Property Organization
(WIPO), European Communities Trademark Association (ECTA), and the
American Banking Association (ABA); individuals; small businesses/
entrepreneurs and many other groups.
Over 1450 pages of summary and analysis on public comments
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received; and
Input from no less than ten independent expert and community
working groups.
Extensive Protections Will Be Introduced
The New gTLD Program today includes significant protections beyond
those that exist in current TLDs, including new mandatory intellectual
property rights protection mechanisms and heightened measures to
mitigate against malicious conduct. These new protections are intended
to provide a safe, stable Internet, and include:
New Trademark protections:
Uniform Rapid Suspension: A rapid, inexpensive way to
take down infringing domain names
Trademark Clearinghouse: a one-stop shop so that
trademark holders can protect their property rights in ALL
new TLDs with one registration
Mandatory sunrise and Trademark Claims processes for
all new gTLDs
The requirement to maintain thick Whois information,
the provision of centralized access to zone file data, and
a strong incentive to provide a searchable Whois database--
all to make it easier for rights holders to identify and
locate infringing parties
A post-delegation dispute procedure under which rights
holders can assert claims directly against TLD registry
operators that play an active role in facilitating domain
name abuse.
Measures to mitigate malicious conduct:
Background reviews of applicants, including reviews
for past criminal history (including the use of
telecommunications or the Internet to facilitate crimes,
illegal sale of drugs, and others);
Rejection of applications where the applicant has a
pattern of adverse decisions under the UDRP (Uniform Domain
Name Dispute Resolution Policy), or has been found to act
in bad faith or reckless disregard under cybersquatting
legislation;
A requirement to have a plan to implement domain name
system security extensions (DNSSEC), reducing the risk of
``man-in-the-middle'' attacks and spoofed DNS records;
A requirement to maintain enhanced, or ``thick'',
WHOIS records at the registry level to allow more rapid
search capabilities, facilitating efficient resolution of
malicious conduct activities;
A centralized zone file access system to allow for
more accurate and rapid identification of key points of
contact for the domains within each gTLD. This reduces the
time necessary to take corrective action within TLDs
experiencing malicious activity;
A requirement to establish a single point of contact
responsible for the handling of abuse complaints (as
requested by law enforcement authorities);
Requirements that New gTLD Registry Operators must:
Maintain a Continued Operations Instrument sufficient to
fund basic registry operations for a period of three years in
case of business failure, to protect consumers and registrants
within that gTLD in the event of registry failure.
Maintain continuity and transition plans, including regular
failover testing.
Cooperate with ICANN In the event transition to a new
registry operator is necessary. ICANN will identify an
Emergency Back-End Registry Operator to assist in the registry
transition process and provide emergency registry services as
needed.
Objection Processes
The New gTLD Program includes robust processes to assure that
stakeholders generally, and governments and rights holders in
particular, have the opportunity to raise objections that could lead to
the rejection of applications that may cause:
User Confusion;
Infringement of legal rights, particularly intellectual
property rights;
Introduction of TLD strings that are contrary to generally
accepted legal norms of morality and public order as recognized
under principles of international law; and
Misappropriation of community names or labels.
In addition, there will be a specialized function, an ``Independent
Objector'' that will act solely in the best interest of the public, and
may file an objection to an application that may give rise to the
concerns raised above.
Rights and Protections Mitigate Costs
The existence of objection processes and enhanced rights protection
mechanisms were adopted to mitigate the concerns of trademark holders
regarding increased costs. With these objection rights, trademark
holders have the opportunity to consider whether to apply for a new
gTLD based on business needs rather than defensive considerations.
These measures greatly reduce the chance that another entity will
succeed in applying for the trademarked name. The new rights
protections mechanisms also reduce the need for trademark holders to
defensively register names across new gTLDs. Further, we've learned
from prior rounds that trademark holders often do not engage defensive
registrations outside of the most popular TLDs.
Additional detail on all of these new protections is provided
below.
Competition and Consumer Choice
The Board's approval of a program carefully crafted by the global
Internet community is consistent with ICANN's mission to increase
consumer choice, competition and innovation. Organizations will now
have the opportunity to apply for gTLDs in the scripts of the world's
languages, to open the world's marketplace further and to welcome the
next billion non-English speaking users to the Internet.
The opening of new gTLDs will be limited by round and by demand.
Two prior rounds of new TLDs have been limited by size or type--and the
restrictions hobbled the realization of benefits. Competition results
from opening, not limiting markets, and encouraging investment and
innovation.
After years of policy and implementation work, the Internet
community and Board determined that the launch of the new gTLD program
was necessary and important in order to increase competition and
innovation in the DNS--and I strongly believe this remains the right
decision.
This testimony provides information on how and why the New gTLD
Program was formed and how it serves the public interest to act now.\3\
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\3\ ICANN has had the opportunity to testify before the House
Committee on the Judiciary, Subcommittee on Intellectual Property,
Competition and the Internet in September 2009 and May 2011 regarding
the New gTLD Program. Information on those proceedings are available at
http://judiciary.house.gov/hearings/hear_090923.html and http://
judiciary.house.gov/hearings/hear_05022011.html.
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II. Introduction of New Top Level Domains Is One of ICANN's Founding
Mandates
ICANN is recognized by the world community as the authoritative
body for technical coordination and policy development regarding the
security, stability and interoperability of the Domain Name System, or
DNS, and we work to maintain a single global Internet. ICANN is
organized as a California, public benefit, non-profit corporation. We
serve this public benefit through a bottom-up, consensus-based, multi-
stakeholder model.
A founding mandate for ICANN, included within the United States
Government's ``White Paper on the Management of Internet Domain Names
and Addresses'',\4\ is to create competition in the domain name market
and specifically, to ``oversee policy for determining the circumstances
under which new TLDs are added to the root system.'' \5\ The
introduction of new gTLDs ``has been a longstanding goal'' of the
relationship between the Department of Commerce and ICANN.\6\ The
relationship formed with the United States Government in 1998, and set
out in the many Memoranda of Understanding between the Department of
Commerce and ICANN, included a core objective to ``Define and implement
a predictable strategy for selecting new TLDs.'' \7\ This fundamental
assumption that increasing the number of gTLDs will increase
competition resulted in the House Committee on Energy and Commerce
initiating a 2001 hearing regarding the potential detrimental effects
to competition when ICANN approved only seven of 200 applied-for TLDs
in an earlier application round. \8\
---------------------------------------------------------------------------
\4\ United States Department of Commerce, White Paper on the
Management of Internet Domain Names and Addresses (``White Paper''), at
http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm (June 6,
1998).
\5\ Id.
\6\ Testimony of Fiona Alexander, Associate Administrator, National
Telecommunications and Information Administration, June 4, 2009, before
the Subcommittee on Communications, Technology, and the Internet,
Committee on Energy and Commerce, United States House of
Representatives, available at http://www.ntia.doc.gov/speechtestimony/
2009/testimony-associate-administrator-fiona-alexander-issues-
concerning-internet-co.
\7\ See, e.g., Amendment 6 to Memorandum of Understanding Between
the U.S. Department of Commerce and The Internet Corporation For
Assigned Names And Numbers, at http://www.ntia.doc.gov/ntiahome/
domainname/agreements/amendment6_09162003.htm (Sept. 16, 2003).
\8\ See Transcript of February 8, 2001 Hearing before the
Subcommittee on Telecommunications and the Internet of the Committee on
Energy and Commerce, House of Representatives, On Hundred Seventh
Congress, First Session, available at http://
archives.energycommerce.house
.gov/reparchives/107/hearings/02082001Hearing37/print.htm (``some view
ICANN's approval of only a limited number of names as thwarting
competition'').
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III. The ICANN Model At Work: How ICANN Approved the Expansion of New
gTLDs
A. ICANN's Multi-Stakeholder Model
ICANN's processes and policy development depend on the engagement
of stakeholders around the world. Stakeholders participate in many
ways, including participation in the policy development processes, in
public comment processes, on advisory committees, and in ICANN's public
meetings.
ICANN's model is based on the principle of reaching consensus
solutions to difficult problems.\9\ Consensus within ICANN does not
mean unanimous community support on every issue. The Internet community
brings a wide range of viewpoints to the discussions, often with
diverging interests. Reaching a thoughtful, negotiated solution that is
acceptable to most, and ensures that all viewpoints are considered--
that is what ICANN strives to do and has done with this program.
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\9\ While my testimony today focuses on implementation of
community-driven policy recommendations, the ICANN model is also used
in non-policy matters.
---------------------------------------------------------------------------
As part of this process, ICANN brings together working groups of
experts to recommend solutions for further community review. ICANN
works closely with all stakeholders to form consensus-based and
community-vetted solutions.
These vital discussions give all interests--including those
representative of my fellow panelists--a seat at the table.
ICANN has noted the PR campaign driven by industry groups against
the New gTLD Program, and the revisionist history they present.
The six-year inclusive policy development process that led to
approval of this Program gave all sectors and industries ample
opportunity to contribute their thoughts and convey their concerns. The
concerns raised by this group of stakeholders were considered, debated
and addressed along with those of many other stakeholders. The record
is clear that changes have been made based upon their input.\10\
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\10\ For example, the Association of National Advertisers twice
provided comments on the New gTLD Program, on December 15, 2008 and
April 12, 2009. In 2008, the ANA provided ICANN with a list of five
specific proposals for ICANN's consideration within the program. All
five of its proposals have been addressed in the current design:
trademark protections have been strengthened; there will be greater
transparency of applicant data and more consistent information
available on registrants; registration fees have been studied;
objection processes have been clarified and strengthened; and
provisions have been made for attaching higher security requirements
based upon the nature of the string (e.g., an applicant for a
financially-related string should have high security capabilities).
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They are now forum shopping and asking Congress to give them
another bite at the apple. After working for years within ICANN's
multistakeholder framework to obtain significant concessions for
intellectual property rights holders, they now seek to upset the
carefully crafted compromise which they helped create. They now want
ICANN to restart the clock, at the expense of the other important
participants who negotiated in good faith and who are eager for the
program to launch.
B. New Generic Top Level Domains--The ICANN Model at Work
The New gTLD Program demonstrates the strength of the bottom-up,
multi-stakeholder process: The New gTLD Program under discussion today
is the implementation of an ICANN-community policy recommendation to
achieve one of ICANN's foundational mandates.\11\ ICANN has worked
closely with the community in building policy and an implementation
plan.
---------------------------------------------------------------------------
\11\ In addition to the White Paper, the introduction of New gTLDs
was consistently identified as a core objective in each of ICANN's
Memoranda of Understanding with the U.S. Department of Commerce (1998--
2006) and the Joint Project Agreement, calling for ICANN to ``[d]efine
and implement a predictable strategy for selecting new TLDs.'' See
Amendment 6 to Memorandum of Understanding Between the U.S. Department
of Commerce and The Internet Corporation For Assigned Names And
Numbers, at http://www.ntia.doc.gov/ntiahome/domainname/agreements/
amendment6_09162003.htm (Sept. 16, 2003). The study and planning
stages, extending back several years, include two trial rounds of top-
level domain applications held in 2000 and 2003. The experience of
those rounds was used to shape the current process.
---------------------------------------------------------------------------
The New gTLD Program: Formed through Community Engagement
From 2005-2007, business and commercial users, contracted
registries and registrars, intellectual property interests, non-
commercial users and the at-large Internet community conducted an
intensive formal, Bylaws-defined policy development process on the
addition of new gTLDs. After intensive policy discussion, all those
constituency groups concluded that new gTLDs should be made available.
The principles guiding the new gTLD policy development process
included that:
New gTLDs will benefit consumer choice and competition;
The implementation plan should also allow for
Internationalized Domain Names (domain names that are written
solely in a non-ASCII script, such as Chinese or Cyrillic) at
the top level;
The introduction of new gTLDs should not cause security or
stability issues;
Applications must be assessed in rounds until the scale of
demand is clear; and
Protection of various appropriate interests requires
objection and dispute resolution processes.
In 2008, the ICANN Board approved the policy on the introduction of
new gTLDs \12\ and directed its implementation. Since October 2008,
ICANN has produced all of the documentation cited above--seven versions
of the Applicant Guidebook (detailing the guidelines and requirements
for the evaluation process) as well as numerous report and memoranda.
All have been the subject of public comment and vigorous debate. Anyone
and everyone can join in; indeed, the process at times has been noisy
given the numbers of contributors and divergent views.
---------------------------------------------------------------------------
\12\ GNSO Final Report on the Introduction of New Top Level Domains
(``Final Report''), at http://gnso.icann.org/issues/new-gtlds/pdp-
dec05-fr-parta-08aug07.htm (Aug. 8, 2007); ICANN Board resolution,
http://www.icann.org/en/minutes/resolutions-26jun08.htm (June 26,
2008); GNSO Minutes, http://gnso.icann.org/meetings/minutes-gnso-
29oct03.html (Oct. 29, 2003).
One of the foundational documents influencing the GNSO Final Report
and the community's implementation work is the GAC Principles Regarding
New gTLDs, at http://gac.icann.org/system/files/gTLD_principles_0.pdf
(Mar. 28, 2007).
---------------------------------------------------------------------------
Nearly every ICANN Supporting Organization and Advisory Committee
was represented in targeted community-based working groups or expert
teams formed to address implementation issues, as were representatives
from all sectors of society.
The gTLD policy-making body, the Generic Names Supporting
Organization, and its component stakeholder groups and constituencies
participated in all aspects of the implementation work arising out of
its policy recommendations. The Country Code Names Supporting
Organization, representing ccTLD operators, was particularly active on
issues relating to internationalized domain names in the New gTLD
Program.
ICANN's technical Advisory Committees provided direct input into
the implementation work. For example, Root Server System operators and
Security and Stability Advisory Group members provided information that
there is no expected significant negative impact of new gTLDs on the
stability and scalability of the root server system.
Members of the At-Large Advisory Committee--the home within ICANN
for individual Internet users--served on nearly every working group and
team, giving the world's Internet users a voice in implementation
discussions. The At-Large Advisory Committee has been an active
participant in the formal public comment process.
(a) Governments Provided Advice and Engaged In Broad, Substantive
Consultations on New gTLDs
ICANN's Governmental Advisory Committee, made up of over 110 of the
world's governments, including the United States of America, has been
deeply and effectively involved in the development of the New gTLD
Program. The Governmental Advisory Committee also coordinated
information exchanges between law enforcement and ICANN.
The ICANN Board and the Governmental Advisory Committee held a
series of landmark consultations on the New gTLD Program.
Through accommodations made by both sides,\13\ changes were made to
the New gTLD Program in each of twelve identified areas including:
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\13\ The final points of discussion between the Governmental
Advisory Committee and the Board are collected at http://www.icann.org/
en/minutes/rationale-gac-response-new-gtld-20jun
11-en.pdf, beginning at page 52.
More rigorous trademark protections (making them mandatory
---------------------------------------------------------------------------
and transferring costs to wrongdoers),
Providing an objection path for governments to avoid
delegation of sensitive TLD applications,
Agreement on a post-delegation economic study to test the
results of first set of new gTLDs,
Agreement that a post-launch study should be conducted on
the effectiveness of new trademark protections and any effects
on root zone operations, and
Development of a process for assistance for needy
applicants.
Ultimately, mutual agreement among the Board and the Governmental
Advisory Committee was reached that, subject to Board approval, the New
gTLD Program would proceed to launch, and the process would be self-
improving through subsequent studies.\14\
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\14\ The Board's Rationale regarding potential areas of difference
with the Governmental Advisory Committee is available at http://
www.icann.org/en/minutes/rationale-gac-response-new-gtld-20jun11-
en.pdf.
---------------------------------------------------------------------------
(b) Law Enforcement Agencies Are Active Contributors to the New gTLD
Program Work
Law enforcement agencies worldwide have worked closely with ICANN
in the new gTLD implementation process, with a goal of reducing domain
name abuses. Representatives of U.S. law enforcement agencies played a
critical role in proposing standards for background screening for
applicants. Law enforcement agencies worldwide, including the FBI, the
UK Serious Organized Crimes Agency (SOCA) and the Royal Canadian
Mounted Police, supported proposals to aid in the prevention and
disruption of efforts to exploit domain name registration procedures
for criminal purposes. DNS abuse and security are regularly the subject
of collaborative meetings between ICANN and the US law enforcement
community, as well as representatives of international agencies.\15\
ICANN expects this successful collaboration to continue. To that end,
there are formal DNS Abuse sessions at every ICANN public meeting where
ICANN and law enforcement representatives come together to advance this
important work.
---------------------------------------------------------------------------
\15\ ICANN's relationships with law enforcement are not limited to
the New gTLD Program; ICANN coordinates regularly on security-related
issues and to address threats to the DNS.
---------------------------------------------------------------------------
(c) Large and Small Businesses and Corporations Have Helped Shape the
Program
Business and industry representatives have participated in the new
gTLD implementation process from the beginning, through the GNSO's
Business and Commercial Users Constituency, through trade organizations
and individually, and remain involved today. Participation cuts across
business size and geography. Many global trade associations and
corporations have participated in the online comment forums, either
individually or through coordinated responses; similarly, great numbers
of small businesses have been active. And the involvement continues.
For example, representatives of Microsoft, Google, Time Warner and
the BBC are active members of a current community group working to
refine the implementation of the Trademark Clearinghouse, one of the
new rights protection mechanisms being launched. Representatives of
large and small business have been integral in forming the heightened
rights protection mechanisms described above, and have contributed to
the development of other portions of the program, including
participation in many community working groups.
(d) Intellectual Property Owners/Brandholder Experts have been Involved
at Every Step
Members of ICANN's Intellectual Property Constituency actively
participated in the policy development concerning the introduction of
new gTLDs, including the recommendation that new gTLD ``strings must
not infringe the existing legal rights of others that are recognized or
enforceable under generally accepted and internationally recognized
principles of law'' that was included in the 2007 Final Report approved
by the Board.
In March 2009 ICANN formed a team of 18 intellectual property
experts from around the world representing the interests of trademark
holders, business and trade associations \16\--the Implementation
Recommendation Team (IRT).\17\ The IRT's work led to the identification
of specific rights protection mechanisms that are now included in the
Applicant Guidebook based on the community and the Governmental
Advisory Committee's further input and guidance.
---------------------------------------------------------------------------
\16\ IRT Membership Directory, at https://st.icann.org/data/
workspaces/new-gtld-overarching-issues/attachments/
trademark_protection:20090407232008-0-9336/original/IRT-Directory.pdf.
\17\ IRT Resolution, at http://www.icann.org/en/minutes/
resolutions-06mar09.htm#07 (Mar. 6, 2009).
---------------------------------------------------------------------------
(e) Additional Subject Matter Experts Formed Teams to Combat Malicious
Conduct and Strengthen Registrant Protections
In addition to the regular participants in its processes, the ICANN
model affords opportunities for experts to provide assistance on
particularly challenging topics. ICANN has access to and the ability to
form world-class expert groups, for example:
The Implementation Recommendation Team and Special Trademark
Issues team created rights protection mechanisms;
A Zone File Access Advisory group set out standardized
access zone file information to simplify access for those
investigating abuses;\18\
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\18\ Zone File Access Advisory Group information and documents are
available at http://www.icann.org/en/topics/new-gtlds/zone-file-access-
en.htm.
The Security and Stability Advisory Committee discussed
tools to mitigate the potential for malicious conduct. Its
---------------------------------------------------------------------------
report provided guidance into the management of glue records;
A High-Security Zone TLD Advisory Group was formed within
ICANN in response to requests from governments and the
financial services sector to create higher security
requirements for TLDs where users have expectations of higher
security;
The Joint Applicant Support Working Group addressed support
for needy applicants, and ICANN is currently considering how to
implement the recommendations into the first round of the New
gTLD Program;
The Joint ccNSO-GNSO IDN Working Team discussed issues
related to Internationalized Domain Names;
The Vertical Integration Working Group addressed community
solutions to the issue of Registry-Registrar cross ownership;
The Temporary Drafting Group recommended enhancements to the
new gTLD Registry Agreement and post-delegation dispute
resolution procedures; and
The Implementation Assistance Group, comprised of over 50
members representing various perspectives such as intellectual
property interests and Registry Operations, are assisting ICANN
in implementing specified Clearinghouse processes.
Each group worked openly and transparently, and produced reports
available for public comment.
Importantly, ICANN listened to and acted on all work produced by
the experts and the more general community and modified Applicant
Guidebook sections to implement the results of this work.
(f) Economic Studies Confirm Overall Benefits of Opening the DNS;
Further Studies Would Offer No Benefit
Several expert economic studies have recognized that the
fundamental benefits of increased competition (that apply in almost all
markets) will also benefit Internet users through enhanced service
offerings, competition, innovation and consumer choice in the domain
name market.
As the new gTLDs moved closer to launch, there were calls for
economic studies to better document the fundamental assumption that
increasing the number of gTLDs will increase competition. In response,
ICANN commissioned five economic studies that examined anticipated
benefits and costs of the New gTLD Program, the effects of price
constraints, and the benefits of vertical integration. All support a
conclusion that Internet users stand to benefit from the introduction
of new gTLDs.
Those studies are:
Dr. Dennis Carlton, Report Regarding ICANN's Proposed
Mechanism for Introducing New gTLDs, at http://www.icann.org/
en/topics/new-gtlds/carlton-re-proposed-mechanism-05jun09-
en.pdf (``Carlton I'');
Dr. Dennis Carlton, Preliminary Analysis Regarding Price
Caps for New gTLD Internet Registries, at http://www.icann.org/
en/topics/new-gtlds/prelim-report-registry-price-caps-04mar09-
en.pdf (``Carlton II'');
CRA International, Revisiting Vertical Separation of
Registries and Registrars, at http://www.icann.org/en/topics/
new-gtld-crai-report-24oct08-en.pdf;
Michael Katz, Gregory Rosston and Theresa Sullivan, An
Economic Framework for the Analysis of the Expansion of Generic
Top-Level Domain Names, at http://www.icann.org/en/topics/new-
gtlds/economic-analysis-of-new-gtlds-16jun10-en.pdf (``Katz/
Rosston Phase I''); and
Michael Katz, Gregory Rosston and Theresa Sullivan, Economic
Considerations in the Expansion of Generic Top-Level Domain
Names, at http://www.icann.org/en/topics/new-gtlds/phase-two-
economic-considerations-03dec10-en.pdf (Katz/Rosston Phase II).
The two Katz/Rosston reports were commissioned by ICANN to directly
address remaining community questions on the potential costs and
benefits of the expansion of the gTLD space. Performed in two phases,
Phase I provided a survey of published studies and resources on the
potential impacts of new gTLD introduction and examined theoretical
arguments on the benefits and costs of increased numbers of TLDs. Phase
II provided reports of empirical studies proposed in Phase I, to help
assess costs and benefits of new gTLDs.
Katz's and Rosston's work was consistent with the basic findings of
the three previous reports, and supported an open approach in which new
gTLDs are added to the root, subject to appropriate restrictions and
mechanisms (such as rights protection mechanisms) designed to minimize
potential costs to trademark holders and others. As discussed above--
and as referenced in Katz's and Rosston's work--ICANN has adopted these
restrictions, as seen in the inclusion of significant rights protection
mechanisms.
What remains clear, as stated by Dr. Carlton, a noted economics
professor and former Deputy Assistant Attorney General for Economic
Analysis, Antitrust Division, U.S. Department of Justice, from October
2006 through January 2008, is that any resultant delay of the launch of
the New gTLD Program ``is likely inconsistent with consumer interests''
and could ``substantially reduce [consumer] welfare.'' [Emphasis
added.] \19\
---------------------------------------------------------------------------
\19\ Carlton I, paragraphs 23, 39 passim.
---------------------------------------------------------------------------
Dr. Carlton explained, ``ICANN's plan to introduce new gTLDs is
likely to benefit consumers by facilitating entry which would be
expected both to bring new services to consumers and mitigate market
power associated with .com and other major TLDs and to increase
innovation.'' \20\ Delay will inhibit competition in the use of
generic, non-trademarked terms, and runs counter to the generally
accepted view that market entry benefits consumers by expanding output
and lowering price. Potential innovations in the new gTLD namespace
will be stifled if limitations to entry are imposed, which would
``essentially freeze the number of TLDs fifteen years after the first
commercial development of the Internet.'' \21\
---------------------------------------------------------------------------
\20\ Id. at paragraph 23.
\21\ Id.
---------------------------------------------------------------------------
Calling for a delay in the entry of new gTLDs serves to perpetuate
existing market conditions: concentration within some existing
registries, most generic strings unavailable, and those that trade on
the value of the current marketplace holding portfolios based upon the
value of current .COM names.\22\
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\22\ Katz/Rosston Phase II, at paragraphs 75-76.
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ICANN's Board and the Governmental Advisory Committee agreed that
further economic study would not be beneficial.\23\ Instead, the focus
turned to the collection of information that will inform the analysis
of the effects of the introduction of new gTLDs after the first round.
The Applicant Guidebook now includes application questions to collect
information relating to the stated purposes and anticipated outcomes of
each application, for use in later studies.
---------------------------------------------------------------------------
\23\ Rationale for the Board's decision that no further economic
studies would be beneficial at this time is available at http://
www.icann.org/en/minutes/rationale-economic-studies-21mar11-en.pdf.
---------------------------------------------------------------------------
IV. The Protections In the New gTLD Program are Substantial
The implementation of the community's policy for the New gTLD
Program looks entirely different today than in October 2008. The many
revisions to the Applicant Guidebook incorporated recommendations and
addressed concerns raised by intellectual property holders,
governments, law enforcement and security experts, technical experts,
business interests, non-commercial interests, individual Internet
users, and others.
Below are highlights of the results of the community's work.
A. Trademark Protection: New gTLDs Will Have Robust Rights Protection
Mechanisms (RPMs) to Protect Marks and Combat Cybersquatting
New gTLDs will have significant RPMs that don't exist in current
gTLDs.
The RPMs will help rights holders protect trademarks efficiently,
in terms of both time and money. When new gTLDs launch, trademark
holders will have the opportunity to register their trademarks in a
single repository that will serve all new gTLDs, the Trademark
Clearinghouse. (Currently, trademark holders go through similar rights
authentication processes for each separate top-level domain that
launches.)
New gTLD registries are required to use the Trademark Clearinghouse
in two ways. First, they must offer a ``sunrise'' period--a pre-launch
opportunity for rights holders to register names in the new gTLD prior
to general registration. Second, a Trademark Claims service will notify
rights holders (``Trademark Claims'') of domain name registrations that
match records in the Clearinghouse for a period of time at the
beginning of general registration.
The Trademark Clearinghouse will increase protections, as well as
reduce costs for trademark holders and start-up registries.
Also with new gTLDs comes the advent of the Uniform Rapid
Suspension system (URS), a streamlined version of the Uniform Domain
Name Dispute Resolution Policy (UDRP) process, allowing trademark
holders a quicker and simpler process through which clear-cut cases of
infringing registrations can be ``taken down.'' The URS and the current
UDRP will remain mandatory within new gTLDs.
New gTLDs offer protections to trademark holders in the event a
registry is actively involved in domain name abuse. The Post-Delegation
Dispute Resolution Procedure (PDDRP) provides a mechanism to make
claims directly against registries affirmatively involved in abuses
involving domain name registrations.
These RPMs are contemplated to address the issues raised in the
economic studies as a means of reducing the potential costs associated
with the introduction of new gTLDs.\24\ Opponents of the new gTLD
process have mischaracterized the fact that economists identified
specific areas of risk that could be mitigated (such as intellectual
property protection costs) as a conclusion that the New gTLD Program
will result in net economic harm. As ICANN has explained previously,
that is an unsupported reading of the economic studies. The economists
noted the benefits of innovation, competition and choice, and concluded
that risks and costs could be mitigated through the implementation of
RPMs and other mechanisms such as malicious conduct mitigation
measures.
---------------------------------------------------------------------------
\24\ See, e.g., Katz/Rosston Phase II at paras 64-65, 120.
---------------------------------------------------------------------------
The rights protection mechanisms in the Applicant Guidebook provide
trademark holders with an alternative to engaging in defensive
registrations.\25\ The provision of effective rights protection
mechanisms is shown to reduce the need for trademark holders to engage
in defensive registrations--but the rights protection mechanisms cannot
be too strict, or the growth of a new TLD may be impaired.\26\
Unsubstantiated fear of forced defensive registrations is not
sufficient reason to stall new gTLDs and delay the benefits of
introducing competition into the DNS.
---------------------------------------------------------------------------
\25\ See Dr. Dennis Carlton, ``Comments on Michael Kende's
Assessment of Preliminary Reports on Competition and Pricing'', at
https://st.icann.org/data/workspaces/new-gtld-overarching-issues/
attachments/tld_demand_and_economic_analysis:20091007232802-2-13939/
original/carlton-re-kende-assessment-05jun09-en.pdf (June 5, 2009).
\26\ Katz/Rosston Phase II, at page 52.
---------------------------------------------------------------------------
In addition, Economic studies refuted the claims that costs of
defensive registrations in new gTLDs will be prohibitive. Independent
studies support the conclusion that as defensive registrations are made
in proportion to the popularity of the gTLD, the large majority of
defensive registrations are in .COM and .NET.\27\ Only if a new gTLD is
very popular will there be a significant need for defensive
registrations. But, it also follows that if a new gTLD is popular, then
it likely is delivering high benefits. Thus, the dual claims of low
benefits and high defensive registration costs are unlikely to be
simultaneously true.
---------------------------------------------------------------------------
\27\ See http://www.circleid.com/posts/
20090202_analysis_domain_names_registered_new
_gtlds/.
---------------------------------------------------------------------------
B. Consumers Will Be Protected Through Efforts to Mitigate Malicious
Conduct
The expert and community work to address the potential for
increased malicious conduct in new gTLDs has generated many enhanced
protections in the Applicant Guidebook. With the assistance and
involvement of external experts such as the Anti-Phishing Working
Group, the Registry Internet Safety Group, members of the Forum of
Incident Response and Security Teams (FIRST), and others from the
Internet security first responder community, nine specific mechanisms
were developed that will improve consumer protection \28\ and enhance
the public interest. They include:
---------------------------------------------------------------------------
\28\ While not related to mitigating malicious conduct, consumers
and registrants will also be protected due to the work done on registry
continuity and the creation of new transition procedures for use in the
event of registry failure.
Prospective registry operators will be appropriately
reviewed for criminal history according to established
criteria, including the use of telecommunications or the
Internet to facilitate crimes, illegal sale of drugs, violation
of the UN Convention against Transnational Organized Crime and
others. Where the applicant has a pattern of adverse decisions
under the UDRP (Uniform Domain Name Dispute Resolution Policy),
or has been found to act in bad faith or with reckless
disregard under the US Anti-cybersquatting Consumer Protection
Act (ACPA) or equivalent legislation, applications will be
---------------------------------------------------------------------------
rejected.
Each new gTLD will be required to have a plan to implement
domain name system security extensions (DNSSEC), reducing the
risk of ``man-in-the-middle'' attacks and spoofed DNS records.
Enhanced, or ``thick'' WHOIS records at the registry level
will allow more rapid search capabilities to facilitate
efficient resolution of malicious conduct activities.
A centralized zone file access system allows for easier
dissemination of registrant data, reducing the time necessary
to take corrective action against registrants.
All new gTLD operators are required to establish a single
point of contact responsible for the handling of abuse
complaints. This requirement is a fundamental step in
successfully combating malicious conduct within new gTLDs.
Mitigating malicious conduct is and will continue to be an
overarching issue within the new gTLD space. The participation of
experts has produced mechanisms to benefit all Internet users,
providing means for safer online interactions. The contributions of the
Governmental Advisory Committee and law enforcement representatives
broadened the scope of these protections.
C. Registrant Protections Regarding Registry Operator Continuity and
Compliance
In addition to the protections in existing gTLDs, such as data
escrow provisions, and participation in Contractual Compliance
investigations, there are notable new protections in the New gTLD
Program regarding the activities of Registry Operators. New gTLD
Registry Operators must:
Maintain a Continued Operations Instrument sufficient to
fund basic registry operations for three years in case of
business failure, to protect consumers and registrants within
that gTLD in the event of registry failure.
Maintain continuity and transition plans, including regular
failover testing. In the event transition to a new registry
operator is necessary, the registrar is obligated to cooperate
with ICANN. ICANN is working to identify an Emergency Back-End
Registry Operator to assist in the registry transition process
and provide emergency registry services as needed. The
continuity and transition planning mitigates the potential risk
of consumer losses due to registry failure raised within the
economic studies.\29\
---------------------------------------------------------------------------
\29\ As a companion protection for registry operators that maintain
exclusive use over all registrations within a TLD--such as brand
holder--in the event of registry failure, ICANN may not transfer
registry operations without the consent of the registry operator.
---------------------------------------------------------------------------
D. Objection Processes Empower the Public and Governments
After the application round closes, information on applied-for
gTLDs will be made public. At that time, entities and individuals can
review the list of strings and consider if they wish to object to any
individual application.
The New gTLD Program allows the Governmental Advisory Committee to
inform ICANN that there are concerns with an application. Depending on
the level of support within the GAC, the advice may result in a
presumption that the Board should not approve the application.
There are also four formal objection processes that can be
initiated by the public, each administered by a well-known
international dispute resolution service provider and protecting
against:
Internet User Confusion;
Infringement of legal rights, particularly intellectual
property rights;
Approval of new TLDs that are contrary to generally accepted
legal norms of morality and public order as recognized under
principles of international law; and
Misappropriation of community names or labels
In addition, an Independent Objector will be appointed with the
ability to file objections in certain cases where an objection has not
already been made to an application that will infringe the interests
listed above. The Independent Objector will act solely in the best
interest of the public.
V. ICANN is Committed to an Orderly Implementation of the First Round
of the New gTLD Program
ICANN's role in the New gTLD Program is to ensure that the program
is fairly, objectively and successfully implemented.
A. ICANN Is Operationally Ready to Administer the New gTLD Program
ICANN's New gTLD Program Office: ICANN will operate a timely,
predictable, transparent, consistent program. ICANN is working to
ensure operational readiness for an orderly implementation, including
enhanced security for the application and evaluation systems to prevent
inappropriate access to the infrastructure or data.
Evaluation service providers have been selected: Each has the
global and technical knowledge and resources to accomplish the planned
work. The gTLD Program Office includes separate quality assurance,
governance, systems and customer service functions. Evaluation service
providers are completing training to normalize scoring procedures.
ICANN-Provided Services: ICANN has developed detailed staffing
plans for all services to ensure adequate administration and
enforcement of its agreements, and for addressing needs the new
environment. Particular focus is being paid to contractual compliance,
IANA and other functions that formally interface with gTLD registries
and registrars.
Creation of new systems: ICANN is creating new business systems
that will contribute to its ability to administer this program.
Examples include the TLD Application System, contractual compliance
tracking, and root zone management automation.
B. The First Round is Limited in Delegation Rate And Incorporates Other
Measures to Assure Root Zone Security and Stability
ICANN's paramount mission is to ensure the security, stability and
resiliency of the Domain Name System. ICANN's technical community has
reported that new gTLDs, in the numbers contemplated, represent no risk
to the safe, stable operation of the Internet's root zone. In
furtherance of its mission, ICANN has made commitments regarding the
size and staging of the first round. \30\ ICANN also makes the
following commitments:
---------------------------------------------------------------------------
\30\ While rates of 215-240 new gTLDs are expected over a one-to-
two year period, it has been determined that the root zone servers can
readily accommodate maximum rates of 1000 delegations per year. See
October 2010 Root Zone Scaling reports are available at http://
www.icann.org/en/announcements/announcement-2-06oct10-en.htm, and the
public comment fora can be accessed from there as well. See also Letter
from Jun Murai, Chair of RSSAC, http://www.icann.org/en/correspondence/
murai-to-board-25nov10-en.pdf (25 November 2010).
The impact of first round delegations on root zone stability
---------------------------------------------------------------------------
will be studied.
Although extremely unlikely, if the root server system shows
signs of stress, the process can quickly be halted to preserve
stability, using dedicated communications and monitoring
systems.
C. ICANN is Committed to a Second Round of the New gTLD Program, Taking
into Account Community Comment
One of the initial policy recommendations arising out of the
Generic Names Supporting Organization is that, ``[t]his policy
development process has been designed to produce a systemised and
ongoing mechanism for applicants to propose new top-level domains. The
Request for Proposals (RFP) for the first round will include scheduling
information for the subsequent rounds to occur within one year.
[Emphasis added.]'' \31\
---------------------------------------------------------------------------
\31\ GNSO Summary of Policy Recommendations, at http://
gnso.icann.org/issues/new-gtlds/summary-principles-recommendations-
implementation-guidelines-22oct08.doc.pdf.
---------------------------------------------------------------------------
The application round opening on January 12, 2012 is for those
entities that are ready to participate in the expansion of choice and
innovation in the DNS. There are many who may not be ready, or want to
view the progress of the first round prior to taking a decision. They
should not feel compelled to participate in the first round--future
opportunities will exist.
ICANN is working to identify a clearer timeline for the second
round. We have heard the calls from many in the community that
certainty in the timing of the second round will reduce some of the
pressure to apply in the first. ICANN has agreed with governments and
trademarks holders that a second round should occur only after:
Studying the impact of first round delegations on root zone
stability.
Conducting a post-first round study on whether new trademark
protections should be adjusted.
The first new gTLDs are expected to be operational in early 2013
and ICANN will undertake these studies at the earliest opportunity as
is practicable--as soon as meaningful data is available.
D. Innovation and Jobs are Waiting
Many new businesses have been formed based on progress in
implementing this Internet community-developed program. Some are
potential applicants; some will ``provision'' applicants. For at least
the past two years, future applicants have attended ICANN meetings,
passing out marketing materials with their ``dot-NEWDOMAIN''
prominently displayed. Consulting businesses to advise applicants have
arisen. Over 120 persons or entities have publicly announced their
intention to apply for new gTLDs. Nearly 90 declared applicants have
active websites marketing their new gTLD idea proposing all types of
gTLDs--city names, community ideas, branding opportunities for
internationally known corporations and others. American jobs are
already being created, and more will be when the program becomes a
reality.
We will never know the opportunities and creativity that will come
through the introduction of new gTLDs will produce until we move
forward. When ICANN was in its infancy, who could have predicted the
online possibilities we take for granted today? Since 1999, the
Internet has generated new companies and innovative ideas including
marketplaces for commerce, communications and social networking:
Facebook, Google and Twitter. New gTLDs hold that same potential for
innovation.
VI. ICANN Is a Reliable Steward of the DNS
ICANN continues to accomplish much for the benefit of the global
Internet community beyond the New gTLD Program. Recent achievements
include:
A. Fulfilling the Affirmation of Commitments
On September 30, 2009, ICANN and the US Department of Commerce
executed the Affirmation of Commitments, a landmark agreement. The
Affirmation institutionalizes ICANN's technical coordination role and
the US Government's commitment to the multi-stakeholder model. The
Affirmation also sets out specific commitments on accountability,
transparency and the interests of global Internet users; preservation
of DNS security, stability and resiliency; promotion of competition,
consumer trust and consumer choice; and enforcement of Whois policies.
These commitments are woven into ICANN's ongoing work.
ICANN dedicates significant time and resources to meeting its
commitments under the Affirmation and continues to build on the
significant progress it has already made. The Affirmation is not just a
reflection of the Department of Commerce's commitment to the multi-
stakeholder model; it is ICANN's commitment to the global Internet
community to operate with greater accountability and transparency.
What has ICANN achieved to date?
In coordination with the community, ICANN has initiated the
three reviews called for in the Affirmation: Accountability and
Transparency; Security and Stability; and Whois.
Within weeks of completion of the public comment period on
the Final Report of the Accountability and Transparency Review
Team (ATRT),\32\ staff completed detailed implementation plans
to meet the recommendations. The Board has decided that all
recommendations should proceed to implementation, and the
committees of the Board have been active in oversight of ATRT
implementation.
---------------------------------------------------------------------------
\32\ The ATRT Report is available at http://www.icann.org/en/
reviews/affirmation/activities-1-en.htm.
---------------------------------------------------------------------------
ICANN is now:
Publishing translations of Approved Resolutions for
all Board meetings and of the Minutes of Board meetings.
Developing and posting the rationale for Board
actions. This includes rationales for all new gTLD-related
actions in 2011, including the Board's decisions on
Registry-Registrar Cross Ownership, and the Completion of
Economic Studies, and eight additional rationale papers
produced to accompany approval of the New gTLD Program.
Posting Board Briefing Materials along with the
Minutes of each Board meeting, as well as Guidelines for
the Posting of Board Briefing Materials to better explain
the redaction process.
Using a standardized public comment template to allow
for easier understanding and identification of the items
posted for comment.
Refining the public comment process to allow for
comment and reply cycles.
Consulting with the Governmental Advisory Committee on
implementation of GAC-related ATRT recommendations,
including work to create a publicly-accessible registry of
GAC advice.
Including a template for the submission of
Reconsideration Requests, as well as maintaining clearer
status of Reconsideration Request ICANN's website.
Continuing to evaluate the work of an Independent
Valuation Expert regarding Board-member compensation (an
ATRT recommendation).
Designing the appropriate scope of an independent
expert review of ICANN's accountability mechanisms.
ICANN is committed to meeting all of its commitments under the
Affirmation of Commitments, and will continue to report on the status
of that work through the ICANN website.
B. Conflicts of Interest Policy Refinements and Enhancing ICANN's
Ethical
Culture--Towards a Gold Standard
ICANN maintains a strong policy regarding the identification and
handling of Board member conflicts of interest, as well as a Code of
Conduct setting out the ethical standards to which Board members are
expected to adhere.\33\ In addition, all ICANN staff are bound by a
conflicts of interest policy. Prior to the June 2011 approval of the
New gTLD Program, ICANN's President and CEO issued a public call that
the era of New gTLDs requires ICANN to be even more vigilant in
addressing conflict of interest issues.
---------------------------------------------------------------------------
\33\ For an example of the application of the Conflict of Interest
policy within the New gTLD Program deliberations, Board members and
Liaisons regularly identify particular areas of interest that require
the members to refrain from voting on issues, or refrain from
participating in deliberations, as reported at http://www.icann.org/en/
minutes/minutes-25sep10-en.htm.
---------------------------------------------------------------------------
Work is now well underway with towards strengthening conflicts and
ethics practices. ICANN intends to meet or create a gold standard for
not-for-profit organizations. This work includes: (1) review of
Conflicts of Interest Policy and Code of Conduct by one of ICANN's main
outside counsel, to identify proposed revisions; (2) a review of
ICANN's Conflicts of Interest Policy, Code of Conduct and other
governance documents by new counsel who are expert in governance
issues; and (3) compiling a panel of international ethics experts to
recommend enhancements to ICANN's ethical culture after a review a of
standards from similar organizations from around the world.
The ICANN Board is also voluntarily adopting a stricter conflicts
of interest practice for New gTLD-related decisions, and staff are
subject to restrictions regarding contact with potential New gTLD
applicants. They are prohibited from accepting any gifts, meals or
entertainment from potential New gTLD applicants.
C. Registrar Accreditation Agreement Amendments
ICANN and its accredited registrars are currently negotiating a
series of amendments, many addressing concerns raised by law
enforcement authorities from around the world. The negotiation team has
agreed to a demanding schedule to achieve a set of amendments for
consideration at ICANN's next public meeting in March 2012. The team
has already agreed in principle to the incorporation of some of the
heightened protections that will be imposed on registry operators
within the New gTLD Program, such as the maintenance of an abuse point
of contact. All of the newly adopted and heightened consumer and law
enforcement protections will be in place in time for the launch of the
first new gTLDs.
The negotiations team is providing regular updates on the status of
negotiations, available at https://community.icann.org/display/RAA/
Home.
D. Internationalized Domain Names
In October 2009, ICANN approved the IDN ccTLD Fast Track Process
through which countries and territories around the world can apply for
TLDs in character sets other than Latin-based script.\34\ Through this
process, 30 IDN ccTLDs are now available on the Internet \35\ with more
on the way. This has opened the Internet to additional billions in
China and India alone.
---------------------------------------------------------------------------
\34\ The IDN ccTLD Process was created after consultation and
planning with the ccNSO (Country Code Names Supporting Organization)
and the GAC.
\35\ These IDN ccTLDs represent 20 countries and territories. Due
to language difference in country, for example, India has IDN ccTLDs
delegated in seven separate scripts.
---------------------------------------------------------------------------
E. DNSSEC
The Internet is becoming more secure. Following years of
development and testing, on July 15, 2010, ICANN, in partnership with
VeriSign and the US Department of Commerce, published the root zone
trust anchor and a signed root zone became available.\36\ The
implementation of DNSSEC (or DNS Security Extensions) will allow
Internet users to know with certainty that they have been directed to
the website they intended. This technology will help eliminate a whole
class of security threats to the Internet.
---------------------------------------------------------------------------
\36\ Information on DNSSEC deployment can be found at http://
www.root-dnssec.org/.
---------------------------------------------------------------------------
ICANN is in active engagement with all registry operators to
encourage adoption. As a result, over 75 gTLDs and ccTLDs now deploy
DNSSEC; most significantly, the .COM registry adopted DNSSEC on March
31, 2011. DNSSEC will be mandatory in all new gTLDs.
ICANN's work as the DNSSEC Root Zone Key Signing Key (RZ KSK)
Manager recently achieved an unqualified SysTrust Certification
following an audit to ensure appropriate internal controls are in place
to meet the availability, processing integrity and security objectives
for the RZ KSK System. ICANN will renew its certification annually.
F. Root Zone Management Automation
In performance of the IANA Function Contract, ICANN has partnered
with VeriSign and the Department of Commerce to automate changes to the
root zone. The root zone holds the authoritative directory of top-level
domains. This automation will make the processing of change requests
more efficient, and will enable all who participate in the change
process to be better prepared for the increase in root zone changes
that will occur through the New gTLD Program.
G. Continued Enforcement of Registrant Protections
Another achievement for the benefit of the global Internet
community is the continuous improvement in contractual compliance work.
ICANN remains vigilant in its contractually-based consumer protection
work and has strengthened the compliance team. The contractual
compliance team is now comprised of 8 members, proficient in multiple
languages, which has increased capacity as well as ICANN's ability to
communicate with its diverse group of contracted parties on compliance-
related matters.
Since 2008, ICANN has either terminated or denied renewal of 43
accredited registrars, and issued thousands of compliance notices.
Other significant progress includes the relatively recent
implementation of registrar data escrow where all registrar data is
escrowed by ICANN so that in the event of a registrar failure or
termination, the data can be transferred to a successor registrar in
order to protect registrants and their web sites. Over 99% of gTLD
registrations are covered by ICANN's registrar data escrow agreements.
ICANN continues to explore ways to identify registrar noncompliance
early, take action swiftly to bring registrars back into compliance and
terminate those that undermine the domain name registration process.
This compliance activity helps ensure a healthy Internet ecosystem.
In early 2011, ICANN enhanced its Whois Data Problem Report System
(WDPRS), a system that contributes to Whois accuracy.
VII. Conclusion
The ICANN community has worked tirelessly to create a New gTLD
Program that will introduce competition and innovation at the top level
of the DNS. Thousands of pages have been carefully written, balancing
expert analyses, independent study, and thousands of comments.
Governments have provided advice; professionals have weighed in. The
new gTLD implementation program represents opportunities for innovation
and enhanced competition, with a future of stronger rights protections,
stronger consumer protections, and measured paths forward to future
rounds.
Thank you for the opportunity to address this Committee. I look
forward to answering any questions that you have during the hearing.
Senator Klobuchar. Thank you very much.
Ms. Williams.
STATEMENT OF ANGELA F. WILLIAMS, GENERAL COUNSEL, YMCA OF THE
USA
Ms. Williams. Good morning, Senator Klobuchar. Thank you so
much for having us testify this morning. I'm Angela Williams,
General Counsel of YMCA of the USA. As you know, the YMCA is
the nation's leading nonprofit committed to strengthening
communities through youth development, healthy living, and
social responsibility. Last year, in 10,000 communities our Ys
served 21 million people, of whom 9 million were young people,
and we serve them in every Congressional district in this great
country. Thank you all for your many years of support to our
local Ys.
I'm here today to speak on behalf of the Not-for-Profit
Operational Concerns Constituency, known as NPOC, which is the
newest constituency formed under ICANN to give not-for-profits
and NGO's a voice in Internet governance. Our diverse
membership includes groups within the United States, such as
American Red Cross, St. Jude's Children's Hospital, Church of
God in Christ, World Wildlife Federation, Human Rights
Campaign, and Goodwill Industries International.
Internationally, our members range from the Association of
NGO's in Gambia to the International Baccalaureate Organization
in Switzerland and many others.
The NPOC members, like most not-for-profits, increasingly
rely on the Internet to fulfil our missions a well as to raise
funds. We share a growing concern that our ability to carry out
our collective missions due to the enormous cost and financial
burdens of the proposed structure of the new Generic Top-Level
Domain Name Program will pose severe hardship and burdens on
each of us.
The new gTLD program compromises use of the Internet by
increasing the risk of fraud, cybersquatting, and trademark
infringement, and by significantly escalating the cost to
protect against such unlawful activities. I know firsthand at
the Y that our local organizations have been hit hard by the
economy. Our name and reputation is priceless. Yet these
additional costs to protect them are now out of financial
reach.
It is the goal of our organizations to educate all those
responsible for implementation of the new gTLD program about
unintended consequences. There is no doubt it will have a
crippling effect upon my organization and most other not-for-
profit organizations here and around the globe in its current
form.
Let me speak to our budgetary concerns. The ultimate cost
in proceeding through the entire application process alone
could reach several hundred thousands of dollars. Currently the
ICANN website quotes costs for one new gTLD application to be
approximately $185,000, with an annual cost thereafter of at
least $25,000 for a required 10-year term. This does not
include the legal fees required to prepare the application and
certain amounts required to be in escrow.
If the Y or another NPOC member chooses not to participate
in the new gTLD program, it runs the risk that another entity
will apply for use of its name or one that is confusingly
similar. The costs for filing an objection are expected to be
approximately $30,000 to $50,000.
ICANN's new gTLD program does not provide special or
discounted protection measures for not-for-profit organizations
to protect their brands and avoid the public confusion that
results from their unauthorized use. YMCA of the USA currently
employs 1.5 full-time employees at a cost of $225,000 annually,
in addition to external legal expertise at a cost of over
$100,000 just this year, in an effort to monitor and protect
the use of its trademarks. Many other not-for-profit
organizations cannot afford this expense to protect their name
and goodwill. The increase of new gTLDs will further exacerbate
this problem.
If not-for-profit organizations cannot afford to register
the domain names in the first place, they certainly will not
have the means to take legal action, nor should they, as their
funds are better served fulfilling their mission. Our country's
diverse 1.5 million not-for-profits share one central
commitment: improving lives. I ask each of you to think about
the small and large not-for-profits that work alongside
government, our work on most, if not all, of our nation's
greatest problems. I ask you to look at this issue through the
lens of the not-for-profit organizations who are using limited
resources to do much good.
Thank you.
[The prepared statement of Ms. Williams follows:]
Prepared Statement of Angela F. Williams, General Counsel,
YMCA of the USA
Good morning Chairman Rockefeller and Ranking Member Hutchison and
Committee Members. I'm Angela Williams, General Counsel for the YMCA of
the USA. As each of you know, the YMCA is the Nation's leading
nonprofit committed to strengthening communities through youth
development, healthy living and social responsibility. We work side-by-
side with our neighbors in more than 10,000 communities to make sure
that everyone, regardless of age, income or background, has the
opportunity to learn, grow and thrive. Last year, our Ys served 21
million people--about 9 million were youth--and we serve them in every
congressional district in this great country. Thank you all for your
many years of support of local Ys in your district. I know you all have
a long history with the Y!
I'm here today to speak on behalf of the Not-for-Profit Operational
Concerns Constituency known as NPOC, which is the newest constituency
formed under ICANN to give not-for-profits and NGOs a voice in Internet
governance. Our diverse membership includes groups within the United
States such as American Red Cross, St. Jude's Children's Research
Hospital, World Wildlife Federation, Church of God in Christ, Human
Rights Campaign and Goodwill Industries International. Internationally,
our members range from the Association of NGOs in Gambia to the
International Baccalaureate Organization in Switzerland and many
others.
The NPOC members, like most not-for-profits, increasingly rely on
the Internet to fulfill our missions as well as to raise funds. We
share a growing concern that our ability to carry out our collective
missions due to the enormous cost and financial burdens of the proposed
structure of the new Generic Top-Level Domain Name Program (``new gTLD
Program'') will pose severe hardship and burdens on each of us. We also
share concern about the increased risk of public confusion, often
unique to not-for-profit organizations, resulting from unauthorized use
of organizational trademarks. I know firsthand at the Y that our local
organizations have been hit hard in this economy. Our name and
reputation are priceless, yet these additional costs to protect them
are now out of financial reach.
The new gTLD Program compromises use of the Internet by increasing
the risk of fraud, cybersquatting, and trademark infringement and by
significantly escalating the cost to protect against such unlawful
activities. The following are areas of particular concern:
domain name registration
the introduction of new top level and second level domain
names into the DNS (Domain Name System)
fraud and abuse, and
using the Internet platform to distribute and collect
mission-related information for our members and the communities
we serve.
It is the goal of our organizations to educate all those
responsible for implementation of the new gTLD program about unintended
consequences. There is no doubt it will have a crippling effect upon my
organization and most other not-for-profit organizations here and
around the globe in its current form.
Budgetary Concerns
I'd like to begin with our budgetary concerns.
The ultimate cost in proceeding through the entire application
process alone could reach several hundred thousands of dollars.
Currently, the ICANN website quotes costs for one new gTLD to be
approximately $185,000 to file an application, with an annual cost
thereafter of at least $25,000 for a required ten-year term. This does
not include the legal fees required to prepare the application and
certain amounts required to be in escrow. Moreover, there are many
additional potential costs. For example, if an application is filed and
then placed into an extended evaluation by ICANN, the applicant may
have to pay an additional $50,000. An applicant may be required to
defend its application against objections, which range from $1,000 to
$5,000 in filing fees per party per proceeding, and an additional
$3,000 to $20,000 in costs per proceeding, which must be paid up front.
If the Y or another NPOC member chooses not to participate in the
new gTLD program, it runs the risk that another entity will apply for
use of its name or one that is confusingly similar. In the event
another entity applies for a top-level domain that contains the
organization's name, the costs for filing an objection are expected to
be approximately $30,000-$50,000.
While processes such as these may be useful in the commercial
space, not-for-profits simply do not have the resources to participate,
and will certainly not be able to compete against for-profit
organizations with large budgets and reserves for intellectual property
protection. Our sector not only prefers to, but must, use our monies to
provide critical services to our communities. We simply cannot afford
thousands of dollars to become a domain name registry solely to ensure
brand protection. Becoming a domain name registry is not part of the
mission of any not-for-profit organization, yet protection of its
reputation is critical. ICANN's new gTLD Program does not provide
special or discounted protection measures for not-for-profit
organizations to protect their brands and avoid the public confusion
that results from their unauthorized use. YMCA of the USA currently
employs 1.5 full-time employees at a cost of $225,000 annually, in
addition to external legal expertise at a cost of over $100,000 this
year alone, in an effort to monitor and protect the use of its
trademarks. Many other not-for-profits cannot afford this expense to
protect their name and goodwill. The increase of new gTLDs will further
exacerbate this problem.
The primary enforcement mechanism of the new gTLD Program is the
Trademark Clearinghouse, where trademark owners can protect their
registered trademark rights. The new gTLD Program is due to be rolled
out in less than 40 days. At this point, the cost of listing marks in
the Clearinghouse has not been set, creating more uncertainty about the
actual costs associated with the new gTLD Program.
This process will only apply to exact matches of trademarks, rather
than common misspellings, etc. that fraudsters and cybersquatters often
use to deceive and confuse Internet users attempting to locate a
particular not-for-profit. Not-for-profits are not in a financial
position to register their marks using hundreds of additional gTLDs,
particularly at premium prices. Trademark owners will not be allowed to
preemptively register marks that are nearly identical.
If not-for-profit organizations cannot afford to register the
domain names in the first place, they certainly will not have the means
to take legal action, nor should they, as these funds are better served
fulfilling their humanitarian, philanthropic, education, academic,
religious, community-based, promotion of the arts, public interest
policy advocacy, health-related services and social inclusion missions.
Public Confusion and Cybersquatting Concerns
Our ability to ensure that the public knows and trusts the public
face of the Internet for all of our organizations is paramount. The
public trusts the high-quality, reliable services they have come to
associate with these organizations.
Bad actors in the domain name space such as cybersquatters,
fraudsters, and others, who register and use domain names in bad faith
to profit off of the goodwill of well-known entities, have existed for
many years in the existing domain name space. Recently one of our
organizations, a large and historic organization, learned that an
unauthorized entity was using its name to fundraise online and in the
community. The result was confusion by potential funders about which
organization was seeking donations. This is a common example of how our
organizations are impacted by trademark infringement.
The likely increased public confusion and fraud that will occur in
the new gTLD space will be particularly devastating for not-for-profit
organizations. If not-for-profit organizations are not able to
adequately protect their names and trademarks in the new gTLDs, bad-
faith domain name registrants will be able to register and make use of
hundreds of domain names that are identical or similar, and to
disseminate dangerously false information to
Internet users. This will greatly increase the likelihood that the
public will be misled in a manner that is both financially devastating
and dangerous to the reputation of those organizations--making it
difficult for them to achieve their worthy missions.
Our country's diverse 1.5 million not-for-profits share one central
commitment: improving lives. The ability to fund and focus on this
important work will be diverted, and the public will suffer as a result
of the new gTLD Program. Current protection mechanisms built into the
new gTLD Program are not adequate and are expensive for those not-for-
profits that wish to take advantage of them. The NPOC is understandably
concerned about the impact on not-for-profit organizations that do not
have the budget to enforce their rights in the current space, much less
if that space were to increase ten-fold. The expense of the new gTLD
Program would greatly divert funds from our central commitment to
improve lives.
Recommendations
Our fears are not alone. There has been a ground-swell of Internet
stakeholders, including the largest for-profit companies that have
repeatedly expressed concerns about the program beginning in January
2012 when so many vital issues remain unresolved.
Therefore, we ask that there continue to be input from
stakeholders, and careful consideration of the impact of this program
on the Internet, and particularly on not-for-profits. Among the
numerous requests the NPOC has made to ICANN, we bring the following to
your attention:
That verified not-for-profit organizations be permitted to
exempt their trademarks from any other applicant in the new
gTLD Program at no cost, or if that is not possible, then at a
drastically reduced fee;
That the mechanisms for trademark protection be
significantly strengthened, with the ability to proactively
protect trademark owners before any application is accepted;
and
That the costs to participate in the new gTLD Program for
verified not-for-profit organizations be eliminated, or if not
possible, then at a drastically reduced fee.
In summary, thank you for your time and attention. I know that in
Health Care Reform you heard the concerns of small not-for-profits and
provided the same ``claw back'' for health insurance premiums for small
not-for-profits as you have for small business. Time and again this
committee has shown interest and common sense in protecting our
precious not-for-profit sector from tremendous financial burden that
will inhibit our ability to achieve our missions. I ask each of you to
think about all the small and large not-for-profits that make our
country and our world a better place to call home; our work alongside
government; our work on most, if not all, of our nation's greatest
problems. I ask you to look at this issue through the lens of the not-
for-profit organizations in this country who are using limited
resources to do much good.
Chairman Rockefeller. You're still Chairman.
Senator Klobuchar. Mr. Jaffe.
STATEMENT OF DANIEL L. JAFFE, EXECUTIVE VICE
PRESIDENT, GOVERNMENT RELATIONS,
ASSOCIATION OF NATIONAL ADVERTISERS (ANA)
Mr. Jaffe. Mr. Chairman, Senator Klobuchar: I am Dan Jaffe
and I am Executive Vice President, Government Relations, for
the Association of National Advertisers, and we very much
appreciate the opportunity to testify on behalf of ANA and
CRIDO, the Coalition for Responsible Internet Domain Oversight.
CRIDO is a coalition of 152 major national and international
companies and trade associations united in opposing the
virtually unlimited rollout of ICANN's new generic Top-Level
Domain name (gTLD) program.
The members of the coalition, CRIDO, include many of the
world's largest companies, with thousands of brands that
consumers know and trust. They represent virtually every sector
of the American and international economies. These are the
companies which provide the economic foundation for the global
marketplace we all use and enjoy.
ICANN's decision to embark on an explosive expansion of
top-level domains is a very significant and fundamental
decision, with implications for everyone in the entire Internet
ecosystem, from marketers, to consumers, to charities, NGO's,
law enforcement agencies, even politicians, and in fact anyone
who has brand names to protect.
The ICANN program is not merely a bad policy choice, but a
serious threat to the legitimate interests of both companies
and consumers on the Internet. We believe both the decision and
the process ICANN followed are fundamentally flawed, and here
are the reasons.
First, the immediate costs imposed on business is likely to
be in the multi billions of dollars. Some of that is estimated
that for a typical company the cost of acquiring a single new
gTLD and managing it could easily exceed $2 million. Companies
that are forced into an auction with another interested
applicant will potentially face far higher costs. As many
companies have hundreds or even thousands of brands to defend,
it's easy to see how these costs will spiral upward.
Even ICANN's own economists recognize that an unlimited
expansion of gTLDs could cause serious economic harm to
marketers. For example, ICANN's own Phase Two Report noted that
brand owners may be compelled to file, ``numerous defensive
registrations to protect trademarks or intellectual property
rights from misuse.'' These resources could be far more
effectively used for job creation and productive capital
investment.
Second, ICANN's protections for consumers in the gTLDs
program are woefully inadequate. Again, ICANN's own economic
experts know that one of the most serious and costly challenges
to the unlimited expansion of gTLDs was the harm to consumers
from increased cybersquatting and related malware, phishing,
and the unknowing purchase of counterfeit goods. In 2009 a
coalition of law enforcement agencies including the U.S.
Department of Justice and the FBI issued a set of law
enforcement due diligence recommendations for ICANN. These
recommendations were intended to help prevent against cyber
security threats. However, according to a communique from
ICANN's own governmental advisory committee dated October 27,
2011, not one of law enforcement's 12 recommendations has been
adopted. And yesterday FTC Chairman Jon Leibowitz, testifying
before a House Judiciary subcommittee, stated that the
unlimited gTLDs rollout could be a ``disaster for business and
consumers,'' and could dramatically increase problems for law
enforcement.
Third, we have serious concerns about the potential major
conflicts of interest involving both the board and staff of
ICANN. It is very troubling that many of the same individuals
who approved the unlimited rollout of the gTLD program,
including ICANN's former chairman, now stand to benefit
substantially from the expansion program.
These are not just our concerns. The full European
Commission and ICANN's own governmental advisory committee have
expressed, ``extreme concern about the inadequacy of the
existing rules of ethics and conflicts of interest.''
We believe that the Affirmation of Commitments that ICANN
agreed to in order to obtain the freedom to manage major
functions of the Internet from the Department of Commerce are
real commitments. They must not be allowed to become merely
meaningless high-sounding platitudes. This means that all
Internet participants, and in particular the Department of
Commerce, must take whatever steps are necessary to assure that
the Top-Level Domain policy is fully justified on a cost-
benefit basis and provides strong and adequate protections for
businesses, NGO's, and consumers, thereby furthering the public
interest. That is simply not the case today.
We hope that this hearing places a spotlight on these
issues and will help to begin the process of careful
reevaluation of this misguided ICANN Top-Level Domain
initiative.
Thank you very much for your attention.
[The prepared statement of Mr. Jaffe follows:]
Prepared Statement of Daniel L. Jaffe, Executive Vice President,
Government Relations, Association of National Advertisers (ANA)
The Association of National Advertisers (ANA) appreciates the
opportunity to present our serious concerns about the new generic Top-
Level Domain Name (gTLD) Program that was approved last June by the
Internet Corporation for Assigned Names and Numbers (ICANN).
ANA is the advertising industry's oldest trade association, founded
in 1910. Our membership includes 400 companies with 10,000 brands that
collectively spend over $250 billion in marketing communications and
advertising. More information about our association is available at
http://www.ana.net.
I am also appearing on behalf of CRIDO, the Coalition for
Responsible Internet Domain Oversight. CRIDO represents 152 major
national and international companies and trade associations that have
joined together to oppose the roll-out of ICANN's new gTLD Program. A
list of all of the members of CRIDO, which represent virtually every
sector of the American economy and many important international
companies, associations and federations, is attached to this
statement.\1\ CRIDO members represent some 90 percent of global
marketing communications spending, equivalent to $700 billion annually.
While CRIDO members may follow different approaches to domain name
activity, they are all united in the belief that the proposed
unfettered expansion of generic Top Level Domains is both dangerous and
misguided. This proposed ICANN initiative is not merely a bad policy
choice but a serious threat to the legitimate interests of business and
consumers on the Internet.
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\1\ See Exhibit A.
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On November 10, 2011, ANA and the other members of CRIDO sent a
Petition to Commerce Secretary John Bryson outlining our serious
concerns about the new gTLD Program approved last June by ICANN despite
significant objections from many global Internet stakeholder groups.
The CRIDO Petition called on the Department of Commerce, and
specifically the National Telecommunications and Information
Administration (NTIA), ``to use its best efforts to persuade ICANN to
stop or postpone the opening of the gTLD application window,'' which is
currently scheduled to begin on January 12, 2012.\2\
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\2\ The Petition is attached as Exhibit B.
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Other important groups have also independently spoken out against
ICANN's gTLD Program, including the National Retail Federation (NRF),
the Screen Actors Guild (SAG) and the American Federation of Television
and Radio Actors (AFTRA). Their letters to the Secretary are available
at http://www.ana.net/getfile/16997 (NRF), http://www.ana.net/getfile/
16998 (SAG) and http://www.ana.net/getfile/17000 (AFTRA).
We commend the Committee for holding this hearing on this critical
issue which could impact the shape of the Internet for decades, and
perhaps in perpetuity. In the past twenty years, the Internet has grown
from being used by a limited number of engineering and academic elite
to being relied on every day by over 2 billion people worldwide.
According to a May 2011 report from the McKinsey Global Institute,
nearly $8 trillion are exchanged annually through e-commerce. The
former Secretary of Commerce, Gary Locke, emphasized that ``[t]he
Internet is becoming the central nervous system of our information
economy and society.'' \3\ Since the Internet serves as a recognized
catalyst for global economic growth, there is far too much at stake,
particularly in today's economic climate, not to ensure that ICANN's
policies are fair and impartial. This is in keeping with the promises
that ICANN made in the Affirmation of Commitments between ICANN and the
NTIA, in exchange for the considerable power to oversee the Internet
that was delegated to ICANN by the U.S. government.
---------------------------------------------------------------------------
\3\ Commercial Data Privacy and Innovation in the Internet Economy:
a Dynamic Policy Framework, Department of Commerce (2010), Message from
Secretary of Commerce Gary Locke at 1, available at: http://
www.commerce.gov/sites/default/files/documents/2010/december/iptf-
privacy-green-paper.pdf.
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We believe the new gTLD Program is bad for marketers, consumers and
the entire online marketplace. Consistent with the Affirmation of
Commitments, ICANN has a responsibility to ensure that its actions
further the public interest, promote consumer trust and the burgeoning
Internet domain.\4\
---------------------------------------------------------------------------
\4\ See http://www.icann.org/en/documents/affirmation-of-
commitments-30sep09-en.htm. (In relevant part,
Section 3(a) requires ICANN to ``ensure that decisions
made related to the global technical coordination of the DNS are made
in the public interest and are accountable and transparent'';
Section 3(c) requires ICANN to ``promote . . . consumer
trust . . . in the DNS marketplace'' and Section 8(c) commits ICANN to
operating ``as a multi-stakeholder, private sector led organization
with
input from the public, for whose benefit ICANN shall in
all events act.'').
---------------------------------------------------------------------------
We strongly believe that ICANN's new gTLD Program fails all of
these standards.
This Program in aggregate has multi-billion dollar implications for
all marketers, both in the commercial and the nonprofit sectors, and
their brands. It would cause irreparable harm and damage to the entire
online business community. It would throw the domain name universe into
substantial confusion for both marketers and consumers.
ICANN has been considering this Program for several years. ANA
objected to these proposals as did many other industry groups and
companies. Even important governmental entities, including
international law enforcement organizations,\5\ expressed deep
misgivings about ICANN's proposed gTLD Program. Unfortunately these
strong objections have largely fallen on deaf ears.
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\5\ In 2009, a coalition of law enforcement agencies including the
Australian Federal Police; the U.S. Department of Justice; the U.S.
Federal Bureau of Investigation; the New Zealand Police; the Royal
Canadian Mounted Police and the United Kingdom's Serious Organized
Crime Agency issued ``Law Enforcement Due Diligence Recommendations for
ICANN.'' It is our understanding from the GAC Communique at Dakar,
dated October 27, 2011, that none of law enforcement's recommendations
has been adopted; in fact of the 12 recommendations registrars were
only able to report on their consideration of three of the twelve law
enforcement recommendations. GAC Communique--Dakar attached hereto as
Exhibit C.
---------------------------------------------------------------------------
ICANN consistently states that it is a multi-sectoral, bottom-up
policy development organization. However, the creation of a massive
bureaucratic labyrinth and process does not mean that ICANN is, in
fact, representing the views of the majority of the Internet community.
There clearly is not ``consensus'' support for the ICANN gTLD
proposals. We cannot let the repetitive mantra that ICANN is a ``multi-
sectoral organization'' camouflage or mask ICANN's lack of
responsiveness to the real concerns of a very broad cross-section of
the business community, and a growing group of non-governmental
organizations, consumer groups and other Internet users.
Key Reasons Why the ICANN Program Must Be Stopped or Delayed
For a variety of reasons, we believe it is critical that the roll-
out of the new gTLD Program be delayed.
Flawed Justification: ICANN justifies the Program on grounds that
it: ``might'' or ``may'' (1) spur competition, (2) relieve scarcity in
domain name space and (3) support differentiated services and new
products. Yet evidence is sorely lacking that the introduction of new
TLDs will actually achieve any of these goals. The very reports relied
upon by ICANN to buttress its gTLD proposal prove that such
justifications are unsupportable.
Competition. Regarding competition, in the December 2010 report
commissioned by ICANN, entitled ``Economic Considerations in
the Expansion of Generic Top-Level Domain Names, Phase II
Report: Case Studies'' (``Phase II Report''),\6\ the authors of
the Phase II Report clearly conclude that the introduction of
new undifferentiated gTLDs is not likely to have a
``significant competitive impact'' in the market for registry
services (Phase II Report, para. 12).
---------------------------------------------------------------------------
\6\ Michael L. Katz et al., Economic Considerations in the
Expansion of Generic Top-Level Domain Names Phase II Report: Case
Studies (2010) http://www.icann.org/en/topics/new-gtlds/phase-two-
economic-considerations-03dec10-en.pdf. See also, Michael L. Katz et
al., An Economic Framework for the Analysis of Expansion of Generic
Top-Level Domain Names (2010), http://www.icann.org/en/topics/new-
gtlds/economic-analysis-of-new-gtlds-16jun10-en.pdf; Michael L. Katz et
al., Reply to Comments on An Economic Framework for the Analysis of the
Expansion of Generic Top-Level Domain Names (2010 [sic]) http://
www.icann.org/en/topics/new-gtlds/analysis-response-economic-framework-
21feb11-en.pdf; Michael L. Katz et al., Reply to Comments on Economic
Considerations in the Expansion of Generic Top-Level Domain Names Phase
II Report: Case Studies (2011) http://www.icann.org/en/topics/new-
gtlds/analysis-response-phase-ii-report-21feb11-en.pdf.
Scarcity. It is equally clear that scarcity is not a current
problem. As the Phase II Report concludes, ``. . . [T]he relief
of name scarcity is unlikely to be the principal source of
social benefits derived from new gTLDs'' (Phase II Report,
---------------------------------------------------------------------------
para. 20).
Differentiated Services and New Products. The Phase II Report
notes new domain uses that are possible with TLDs, comparing
such prospects to existing TLDs, e.g., domains that are
restricted to particular functions or applications (such as
existing TLD .mobi), domains that restrict second level
registration to a particular class of owners (such as existing
TLDs .museum, and .aero), and domains that restrict second-
level registration to presenting a certain type of content
(such as current domains relating to a specific geographic
area). However, in each case, the experts conclude that the
benefits were little more than speculative and that many of the
TLDs adopted by ICANN in the last expansion round have been
practical failures (Phase II Report, para.para. 39, 50, 58, 59,
62).
There is no demonstrable need to increase generic Top Level Domain
names on an unlimited basis, and no likely benefit that would result
from such an unrestricted increase.
A wide array of 22 suffixes such as ``.biz,'' ``.info,'' ``.jobs,''
``.travel'' and ``.museum'' currently exist, not including the country
codes. Most of those gTLD names are minimally used, but nonetheless
actively policed by brand owners concerned about trademark dilution,
cybersquatting and the online sale of pirated or counterfeited
products.\7\ The gains assumed by ICANN are completely unsubstantiated.
In contrast, the new Program will throw the domain name universe into
widespread confusion, impose major costs on marketers and cause harm to
consumers. If there is no scarcity of space within the existing domain
name system, the ICANN Program appears to be a solution in search of a
problem. Even more seriously, the ``solution'' proposed by ICANN is
likely to impose enormous costs on the Internet and divert productive
resources at a time where these dollars could be far more effectively
used for job creation and productive capital investment.
---------------------------------------------------------------------------
\7\ For further background on the online piracy and counterfeiting
arguments, see Mark Monitor, Traffic Report: Online Piracy and
Counterfeiting (January 2011) (The study used only 22 brands and found
that for those brands online distribution of pirated digital content
and e-commerce sales of counterfeit goods were rampant).
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Serious Economic Impact if the Program is Adopted
These are not just our views. The studies ICANN initiated itself
recognize that the Program may cause several severe economic harms. As
set forth in Paragraph 63 of the Phase II Report, the costs of the
Program may include the following:
Misappropriation of Intellectual Property. The experts cite a
key concern of misappropriation of intellectual property
rights, including the ``costs of domain watching, defensive
registrations, litigation or other measures to end
misappropriation, and costs due to misappropriation that is not
blocked (e.g., lost profits due to sales of counterfeit goods
or brand dilution).'' \8\
---------------------------------------------------------------------------
\8\ Michael L. Katz et al., Economic Considerations in the
Expansion of Generic Top-Level Domain Names Phase II Report: Case
Studies (2010) at para. 63, http://www.icann.org/en/topics/new-gtlds/
phase-two-economic-considerations-03dec10-en.pdf.
Defensive Registrations. As noted, brand owners may be
compelled to file defensive registrations, i.e.,
``registrations undertaken to protect legitimate trademark or
intellectual property rights from misuse, not registrations
undertaken as the `defense' of one's business against increased
competition on the merits.'' \9\ This cost alone could be in
the hundreds of thousands of dollars per brand name, creating a
multi-million dollar liability for major corporations and a
multi-billion dollar cost to the industry.
---------------------------------------------------------------------------
\9\ Id.
Several Internet Domain name sellers have estimated the range
of costs for gTLD applications alone. For example, in an
article entitled, ``Sweeping Away Confusion Regarding gTLD's,''
Gretchen Olive stated that, ``Those applying will need a
minimum of $800,000 to $1 million to not only submit the
application, but also to defend it against objections lodged by
third parties and to get through the contract process with
ICANN and set up the registry technical infrastructure
(emphasis added).'' \10\ The article further noted that,
``Monitoring for infringement and submission of objections will
likely run most organizations between $25,000 and $50,000 in
2012.'' \11\
---------------------------------------------------------------------------
\10\ Gretchen Olive, Sweeping Away Confusion Regarding gTLDs,
ADOTAS (Nov. 8, 2011) available at: http://www.adotas.com/2011/11/
sweeping-away-confusion-regarding-gtlds/.
\11\ Id.
Domain Navigation Dilution because Consumers have More Places
to Look. The experts note that the ``introduction of additional
gTLDs may increase the costs of Internet navigation by
increasing the number of potential domains over which a user
may search. To the extent that such effects arise, they can
dilute the value of existing domain names as navigation
devices. The costs associated with such dilution include the
costs of defensive registrations. . .and the costs due to
dilution that cannot be mitigated.'' \12\
---------------------------------------------------------------------------
\12\ Id. at note 6, supra (Phase II Report).
Harm to Internet Users from Increased Cybersquatting. One of
the most incipient and costly challenges to the adoption of any
new gTLD is the prospect of cybersquatting and the substantial
costs associated with preventing and policing it, which are
already well into the billions of dollars. With respect to
cybersquatting, the experts note, ``In addition to harm in the
form of increased search costs consumers may suffer more direct
harm from increased cybersquatting. This direct harm may result
from malware, phishing, and the unknowing purchase of
counterfeit goods.'' \13\ While the experts opine that such a
result ``may'' occur, history proves that cybersquatting will
occur, just as it has with every TLD that has ever been
administered by ICANN.
---------------------------------------------------------------------------
\13\ Id.
Reduced Investment by Intellectual Property Owners. The
protection and development of intellectual property is a core
value for the global economy, particularly given the world's
reliance on technology. As ICANN's own experts conclude, the
Program seriously undermines intellectual property rights--
``There may also be indirect harms from the loss of
intellectual property owners' incentives to invest in that
intellectual property due to concerns that some of the benefits
of that investment would be misappropriated.'' \14\
---------------------------------------------------------------------------
\14\ Id.
Losses from Failed TLDs. History itself discredits ICANN's position
that the introduction of new TLDs will increase innovation and
competition. One need only look at the dismal financial registration
and track record of TLDs like .museum and .aero to prove the point.
Such failures are very disruptive and costly to companies that have
registered. This reality is borne out by the authors of the Phase II
Report, who conclude that ``[i]f a new gTLD failed and ceased
operation, external costs might be imposed on the Internet community.
Registrants in a failed gTLD might be stranded, unable easily to move
their websites (on which they may have based their business) to other
TLDs due to embedded links. More generally, Internet users might face
increased clutter on the Internet if links fail to resolve.'' \15\
Clearly, these types of dangers are likely to be substantially
magnified by allowing an unrestricted proliferation and explosive
growth of domains.
---------------------------------------------------------------------------
\15\ Id.
ICANN has in effect dismissed these concerns in reliance on what
its own experts have noted as ``speculative'' competitive benefits of
the Program. However, is it really credible that the broad group
represented by the CRIDO membership--that includes some of the largest
national and international advertisers, brand holders and associations
in the world, with representation cutting across a vast range of
industry sectors--can all be unable to foresee what are their true
competitive interests?
ICANN's Deliberation Process is Flawed
Nevertheless, ICANN is now moving forward with the Program. ICANN
justifies ignoring these studies in its report entitled, ``Rationale
for Board Decision on Economic Studies Associated with the New gTLD
Program.'' \16\ With all due respect, the ``Rationale'' is nothing
short of a nullification of ICANN's own mandate to conduct economic
studies. Rather than calling for further expert analysis, ICANN
dismisses the very economic evidence derived from the studies and opts
for a default justification of ``competition'' in which any TLDs may be
adopted. Furthermore, ICANN minimizes the Phase II Report's conclusion
that registry competition will not be significantly affected by the
Program; ICANN says its real interest is competition in business
generally, and claims that any additional economic study on that
subject would be futile.\17\ We understand that ICANN contemplates
further studies once the new gTLD Program is underway,\18\ but at that
point, the damage will have been done. Once new gTLDs are deployed,
there is no turning back.
---------------------------------------------------------------------------
\16\ Available at www.icann.org/en/minutes/rationale-economic-
studies-21mar11-en.pdf. See also ICANN Board Rationales for the
Approval of the Launch of the New gTLD Program, available at
www.icann.org/en/minutes/rationale-board-approval-new-gtld-program-
launch-20jun11-en.pdf. Even in its final rationales, ICANN acknowledges
that no determination could be made that the benefits of the new gTLD
program will outweigh the costs.
\17\ See ICANN, Minutes of Board Meeting 25 January 2011, Economic
Studies--http://www.icann.org/en/minutes/minutes-25jan11-en.htm
(``[T]he Board has determined that no further commissioned economic
studies could better inform the Board's decision.'' Id. at 8). See also
ICANN, Rationale for Resolution 2011.01.25.22 (2011) at 1, http://
www.icann.org/en/minutes/rationale-economic-studies-21mar11-en.pdf; see
also Anthony Van Couvering, ICANN's Economic Study--It Depends, Minds +
Machines Blog (Jul 21, 2010)(Commenting on the June 2010 Katz economic
study Mr. Van Couvering said, ``Should observers of ICANN lend any
credence to this study? If your goal is to advocate a position without
any empirical evidence, it is an excellent tool. If your goal is to
understand what the new gTLD program will produce, it will, if printed
out and bound, make a splendid paperweight'').
\18\ http://www.icann.org/en/minutes/minutes-25jan11-en.htm.
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If this Program, in fact, were likely to enhance competition and
the Internet marketplace, one would expect broad statements of support
for it. This support would come from many Internet and governmental
sources. Instead, the voices that are speaking in favor of the Program
appear to come almost exclusively from registrars, registries and
others who will directly profit from facilitating the gTLD roll out--
not those whom ICANN says will benefit. The broader Internet business
community is clearly rejecting the proposal.
This scant and conflicting economic analysis is one of many
examples in which ICANN has disregarded its own requirements and
unilaterally issued an edict. ICANN's own Code of Conduct \19\ mandates
that ICANN will ``[w]ork to build consensus with other stakeholders in
order to find solutions to the issues that fall within the areas of
ICANN's responsibility. The ICANN model is based on a bottom-up,
consensus driven approach to policy development.'' Its undertakings
with the U.S. Department of Commerce additionally require that ICANN
act rationally and transparently.\20\ Clearly, the legal and due
diligence requirements of ICANN's own mandates have not been met here.
An effort to foist on the world community and markets a change of this
magnitude is not the measured ``bottom up'' approach described in the
Code of Conduct. Moreover, it is impossible to describe the decision to
adopt the Program as a decision based upon consensus where the
research, comments and reports submitted to ICANN clearly show that
there was and still is no consensus on the purported benefits of the
Program.
---------------------------------------------------------------------------
\19\ http://www.icann.org/en/documents/code-of-conduct-10jan08-
en.pdf.
\20\ ICANN's Code of Conduct at http://www.icann.org/en/documents/
code-of-conduct-10jan08-en.pdf; see also, Affirmation of Commitments by
the United States Department of Commerce and the Internet Corporation
for Assigned Names and Numbers (September 30, 2009) at http://
www.icann.org/en/documents/affirmation-of-commitments-30sep09-en.htm
(``ICANN commits to maintain and improve robust mechanisms for public
input, accountability, and transparency so as to ensure that the
outcomes of its decisionmaking will reflect the public interest and be
accountable to all stakeholders by: . . . (c) continually assessing and
improving the processes by which ICANN receives public input (including
adequate explanation of decisions taken and the rationale thereof); (d)
continually assessing the extent to which ICANN's decisions are
embraced, supported and accepted by the public and the Internet
community; and (e) assessing the policy development process to
facilitate enhanced cross community deliberations, and effective and
timely policy development'').
---------------------------------------------------------------------------
Excessive Costs and Harms to Brands
The immediate cost imposed on businesses is likely to be in the
billions of dollars. Applying for a new Top Level Domain name will
require an extraordinarily expensive registration fee of $185,000 as
well as a minimum cost of $25,000 paid annually to ICANN over the ten-
year contractual commitment that successful applicants must make. Costs
will further escalate at the second level of naming--the word to the
left of the ``dot''--as brand owners will have to consider registering
each of their brand-related terms, for either commercial or defensive
purposes.
Some have estimated that, for a typical company, the cost of
acquiring a single gTLD and managing it over the initial commitment of
ten years could easily exceed $2 million, including expenses for the
application process, operations, disputes, and related legal services.
The costs associated with trademark monitoring and protection in all
the new gTLD spaces will run even higher. Some CRIDO members spend over
$1 million a year today to enforce against cybersquatting and fraud in
the existing 22 gTLD spaces. These numbers will clearly escalate if
ICANN's proposal goes forward. In addition, many companies may face an
auction for a generic Topic Level Domain, which will result in higher
costs to ICANN's benefit. Many companies have hundreds or even
thousands of brands to defend. Brand owners will face a Hobson's choice
of either being compelled to spend substantial resources to acquire and
manage new gTLDs or risk the harm to their brands that could occur if
they take no action. This has certainly been the message spoken loud
and clear to us from our members and the many groups within CRIDO.
Following the Money
Existing and prospective Internet registries and registrars stand
to be the primary beneficiaries of the new gTLD Program. Just examining
ICANN's own financial statements, it would appear that registries and
registrars pay fees that comprise the lion's share of ICANN's budget.
According to ICANN's own audit reports for the Fiscal Year 2011,
ICANN's primary source of revenue comes from Internet registries and
registrars. In fact, of ICANN's $69.3 million in revenue for Fiscal
Year 2011, $64.5 million came from fees paid by registries and
registrars.\21\ That is 93 percent of ICANN's 2011 revenue. In 2010,
that same figure was 94 percent.\22\ Looking ahead to this new gTLD
program, more TLDs mean new business for registries and registrars and
greater numbers of registries and registrars, which in turn creates
more fees for ICANN.
---------------------------------------------------------------------------
\21\ See Report of Independent Auditors and Financial Statements
for the Internet Corporation for Assigned Names and Numbers, prepared
by Moss-Adams LLP June 30, 2011 and 2010, available at: http://
www.icann.org/en/financials/financial-report-fye-30jun11-en.pdf.
\22\ Id at 2.
---------------------------------------------------------------------------
However, ICANN's budget incentive for new gTLDs will be more than
increased registry and registrar fees. The initial application fees
expected in FY 2012 and 2013 will provide the organization with a
considerable boost to its budget--a $92.5 million dollar boost in fact
(which could be quite conservative because it only projects 500
applications; in some of ICANN's earlier delegation scenarios they have
projected 1,000 or more applications as the high end).\23\ In the
Fiscal Year 2012 budget projections for new gTLD revenues are expected
to add another $27.8 million to ICANN's revenue--or adding another 40
percent to its budget.\24\ Likewise, in draft Fiscal Year 2013 new gTLD
revenues are expected to add another $64.8 million--that is nearly a 94
percent increase in revenues above the 2011 Fiscal Year figures
mentioned above.\25\
---------------------------------------------------------------------------
\23\ New gTLD Program Cash Flow and P&L by Fiscal Year, ICANN.org,
(September 9, 2011) (showing the gTLD financial projections) available
at: http://www.icann.org/en/financials/new-gtld-program-cash-flow-
09sep11-en.pdf (``gTLD Cash Flows Projections''); Delegation Rate
Scenarios for New gTLDs, ICANN.org, (Oct. 2010) at p 6 (showing 1000
applications as extremely high activity and 1000s of applications as
the maximum throughput) available at: http://www.icann.org/en/topics/
new-gtlds/delegation-rate-scenarios-new-gtlds-06oct10-en.pdf.
\24\ gTLD Cash Flow Projections at 2.
\25\ Id.
---------------------------------------------------------------------------
ICANN says that it will use these revenues for intensive
application review processes, but we would be remiss if we did not add
that $30 million or nearly one-third of all expected gTLD application
revenues will be earmarked for a litigation risk fund. ICANN is clearly
expecting many problems with this application window given the large
litigation budget anticipated.\26\
---------------------------------------------------------------------------
\26\ Id.
---------------------------------------------------------------------------
Lack of Consensus
It is true that ICANN spent a number of years considering this
Program at meetings around the world. However, the 152 members of
CRIDO, representing major global companies and business groups, are
living proof that the objections of industry sectors most affected by
this Program have not been adequately considered or addressed by ICANN.
A number of CRIDO members have actively voiced objections to the new
gTLD process and the lack of adequate trademark protection mechanisms,
yet their concerns have fallen on deaf ears. This entire constituency--
the one required to fund the new names and maintain the Internet's
economic model--has been largely ignored. On the other hand, we do not
hear any clamor for the Program. ICANN has failed to reach stakeholder
consensus, a specific requirement of its contract with the NTIA.
Conflict of Interest Concerns
We are very concerned about potential conflicts of interest that
may be present in this expansion proposal, for both the Board and staff
of ICANN. It is very troubling that many of the same individuals who
approved this expansion, including ICANN's former Chairman, now stand
to benefit substantially from companies that will register applicants
and manage the expansion. For example, within one month after the vote
of the ICANN Board to approve the new gTLD expansion, former ICANN
Chairman Peter Dengate Thrush had joined a London company called Top
Level Domain Holdings, a company that will directly profit from the
decision.
These events have cast a serious cloud over the legitimacy of the
vote to approve the new gTLD Program. ICANN serves as a quasi-governing
body for the day-to-day operations of the Internet. It is absolutely
critical that all decisions are made in the public interest, not in the
best interest of the closely-knit ICANN family.
We believe that ICANN can reclaim its legitimacy as an Internet
governance body only by conducting a thorough and proactive review of
both the gTLD expansion and the broader conflict of interest and ethics
policies for the organization. We expressed these concerns in a letter
to ICANN on October 2, 2011, which is available at http://www.ana.net/
getfile/16766. Our letter notes that serious concerns about the
inadequacy of the ICANN conflict of interest policies have been
expressed by Senator Ron Wyden (D-OR), by Lawrence Strickling,
Assistant Secretary for Communications and Information at the U.S.
Department of Commerce, and by the full European Commission.
At its October meeting in Dakar, ICANN's Governmental Advisory
Committee (GAC) expressed ``extreme concern about the inadequacy of the
existing rules of ethics and conflict of interest'' in ICANN.\27\ The
conflict of interest issues threaten to undermine confidence in ICANN's
decision-making. Obviously, if ICANN merely adopts prospective conflict
of interest corrections they will not undo harms that have already
occurred. Attention must be paid to the effects of conflicts on ICANN's
deliberations and the legitimacy of the gTLD roll out proposal.
---------------------------------------------------------------------------
\27\ GAC Communique--Dakar, October 27, 2011 (attached as Exhibit
D).
---------------------------------------------------------------------------
Exemptions to the Program
Three groups were exempted or exempted themselves from the new gTLD
Program: the Red Cross, the Olympics and ICANN itself. In letters to
ICANN, both the Red Cross and the Olympics stated that they needed this
type of protection to assure that the public who trust their brand
identities would not fall victim to typosquatting, cybersquatting and
phishing. The Red Cross noted that a substantial portion of their
resources are used to counteract ``fraudulent websites containing Red
Cross names to solicit donations routinely after virtually every
newsworthy disaster.'' \28\
---------------------------------------------------------------------------
\28\ David Meltzer, Senior Vice President International Services,
Peggy Dyer, Chief Marketing Officer and Mary S. Elcano, General Counsel
and Corporate Secretary, American Red Cross, to Kurt Pritz, Senior Vice
President, Stakeholder Relations and Amy Stathos, Deputy General
Counsel, ICANN, June 16, 2011, page 2.
---------------------------------------------------------------------------
While these exemptions may be appropriate, no other exemptions were
extended to the thousands of other charities and foundations that
similarly use the Internet to foster their public interest activities--
yet they surely face the same kinds of harms.
The fact that ICANN exempted itself is even more informative. ICANN
not only exempted its own name from the gTLD process, but several other
names as well. But the protections for ICANN will not end at the top
level. ICANN will have the opportunity to negotiate more protections
for itself at the second level once new gTLD registries are selected.
Take for example, the many reservations that ICANN made for itself on
the new .xxx domain. In the .xxx registry, ICANN was even able to
protect names of some of its leadership.\29\ No other groups received
the same protection. Major universities across the country, for
example, have recently found it necessary to purchase multiple .xxx
domain names to protect against links of their names to porn sites. The
Ohio State University purchased a total of 19 domains, including
buckeyeblitz.xxx and goldpants.xxx.\30\ The cost for each of these
domain name purchases was $200 for a purely defensive purpose. These
costs could be substantially higher if an auction is required to
protect a name.
---------------------------------------------------------------------------
\29\ Kevin Murphy, RodBeckstrom.xxx Will Never See the Light of
Day, Domain Incite (Sept. 14, 2011) available at: http://
domainincite.com/rodbeckstrom-xxx-will-never-see-the-light-of-day/.
\30\ FoxNews.com, Penn State Bought Adult .XXX Domain Names to
Block Usage Prior to Sex Abuse Scandal (Nov. 30, 2011) available at
http://www.foxnews.com/us/2011/11/30/penn-state-buys-adult-domain-
names-to-block-usage/.
---------------------------------------------------------------------------
These exemptions explode the argument that ICANN makes that it has
developed adequate protections against cybersquatting, typosquatting
and phishing. These charitable and other NGO groups will face the same
dangers that the Red Cross and the Olympics highlighted, and many of
them will not have the financial wherewithal to defend and protect
their good name in the Internet marketplace.
Not All TLDs Are Alike
Our concerns primarily focus on generic Top Level Domains (gTLDs).
These concerns do not generally extend to so-called ccTLDs dealing with
country designators such as .co, .cn, .eu, and .de. Nor are we opposed
to the use of other languages and character sets in the Domain system,
although we believe that the public interest requires that all Top
Level Domains be cost beneficial and not impose undue burdens on the
Internet or undermine consumer trust. Neither do we believe that there
is something sacrosanct about maintaining the existing 22 gTLD system
unaltered. However, all of our companies, associations and groups
believe the unrestricted and unlimited expansion of gTLDs is a reckless
experiment that needs to be halted and reassessed before it damages the
very positive growth of consumer trust that is fundamental to the
Internet marketplace.
Conclusion
We commend the Committee for holding this important hearing.
Examining the membership list of CRIDO demonstrates that the concerns
of the worldwide business community are extraordinarily widespread. The
issues that we raise will fall even harder on consumer groups,
charities, foundations, and myriad other entities that have even less
financial ability to protect their institutional interests and that
will be impacted by the rapid, unlimited opening of the generic Top
Level Domain space.
We reject the argument of those who say that it is too late for
ICANN to step back and reevaluate or for NTIA, the Governmental
Advisory Committee and other key Internet participants to try to make
one last major effort to forestall this potentially severely damaging
initiative. There is absolutely nothing sacred about the January 2012
implementation date. Given the serious concerns expressed by a broad
and growing cross-section of the entire American and global business
community, the companies which provide the economic foundation of the
Internet, and the potential dangers to consumers, we believe it would
be irresponsible for ICANN to proceed full-speed ahead with the roll-
out next month.
We are sensitive to the U.S. government's concern that by acting,
in any capacity, it could fracture the voluntary domain name system,
which is embedded in the authoritative root. Or, alternatively, that
control of the ICANN Internet governance function could be relinquished
to the International Telecommunications Union. However, given the
potential harms that we have identified from this Program: consumer
harm, cybersquatting, typosquatting, Internet piracy and product
counterfeiting, inaction could be far more destabilizing to ICANN as a
governance body. If the new gTLDs launch and such problems occur en
masse, then foreign governments will have no choice other than to call
for the dismantling of ICANN. No one here at this hearing wants to see
ICANN dismantled. We would like to buttress its authority by ensuring
that the gTLD Program is maintained and developed appropriately in the
public interest and promotes consumer trust.
We very much appreciate this opportunity to testify and the careful
consideration of our and the other members of CRIDO's views.
Exhibit A
Association Signatories to the ICANN Petition
AAF-Amarillo
AAF-Dallas
AAF-Fort Worth
AAF Hampton Roads
AdClub Cincinnati
Advertisers Association of Guatemala (Guatemala)
Advertisers Association of Nigeria (Nigeria)
Advertisers Association of Turkey (Turkey)
Advertisers Business Group (United Arab Emirates)
Agrupacion Nacional de Anunciantes de Mexico (Mexico)
American Advertising Federation (AAF)
American Advertising Federation Baltimore, Inc.
American Advertising Federation of Des Moines
American Apparel & Footwear Association (AAFA)
American Association of Advertising Agencies (4As)
American Beverage Association (ABA)
American Council of Life Insurers (ACLI)
American Health Care Association (AHCA)
American Insurance Association (AIA)
American Intellectual Property Law Association (AIPLA)
American Society of Association Executives (ASAE)
Asociacion Espanola de Anunciantes (Spain)
Asociacion Nacional de Anunciantes de Colombia (Colombia)
Asociacion Nacional de Anunciantes Peru (Peru)
Asociacion Nacional de Anunciantes Venezuela (Venezuela)
Asociacian Nacional de Avisadores Chile (Chile)
Associacao Brasileira de Anunciantes (Brazil)
Associacao Portuguesa de Anunciantes (Portugal)
Association of Advertisers in Ireland (Ireland)
Association of Canadian Advertisers (Canada)
Association of National Advertisers (ANA)
Association of New Zealand Advertisers (New Zealand)
Association of Swiss Advertisers (Switzerland)
Austin Advertising Federation
Australian Association of National Advertisers (Australia)
Boise Advertising Federation
Bond van Adverteerders (The Netherlands)
Bulgarian Association of Advertisers (Bulgaria)
Cable Advertising Bureau (CAB)
Camara Argentina de Anunciantes (Argentina)
Camara de Anunciantes del Paraguay (Paraguay)
Camara de Anunciantes de Uruguay (Uruguay)
China Association of National Advertisers (China)
Consumer Electronics Association (CEA)
Czech Association for Branded Products (Czech Republic)
Cyprus Advertisers Association (Cyprus)
Dansk Annoncoerforening (Denmark)
Direct Marketing Association (DMA)
European Association of Communications Agencies (EACA)
European Publishers Council (EPC)
Food Marketing Institute (FMI)
Grocery Manufacturers Association (GMA)
Groupement des Annonceurs du Maroc (Morocco)
Hellenic Advertisers Association (Greece)
Hungarian Branded Goods Association (Hungary)
Idaho Advertising Federation
Idaho Falls Advertising Federation
Incorporated Society of British Advertisers (United Kingdom)
Indian Society of Advertisers (India)
Indonesia Advertisers Association (Indonesia)
Intellectual Property Owners Association (IPO)
Interactive Advertising Bureau (IAB)
IAB Europe
The Israel Marketing Association (Israel)
Japan Advertisers Association (Japan)
Lebanese Association of Advertisers (Lebanon)
Lewis-Clark Valley Advertising Federation
Magic Valley Advertising Federation
Mainostajien Liitto (Finland)
Malaysian Advertisers Association (Malaysia)
The Marketing Association of South Africa (South Africa)
Mobile Marketing Association (MMA)
MPA--the Association of Magazine Media
National Association of Broadcasters (NAB)
National Association of Manufacturers (NAM)
National Confectioners Association
National Council of Chain Restaurants (NCCR)
National Restaurant Association (NRA)
Norwegian Association of Advertisers (Norway)
Organisation Werbungtreibende im Markenverband (Germany)
Pakistan Advertisers Society (Pakistan)
Philippine Association of National Advertisers (The Philippines)
Pocatello Advertising Federation
Promotion Marketing Association (PMA)
Property Casualty Insurers Association of America
Radio Advertising Bureau (RAB)
Retail Industry Leaders Association (RILA)
Russian Association of Advertisers (Russia)
Singapore Advertisers Association (Singapore)
Slovak Association for Branded Products (Slovakia)
Slovenian Advertising Chamber (Slovenia)
Sveriges Annonsorer (Sweden)
Television Bureau of Advertising (TVB)
Union Belge des Annonceurs (Belgium)
Union des Annonceurs (France)
U.S. Chamber of Commerce
Utenti Pubblicita Associati (Italy)
World Federation of Advertisers (WFA)
Company Signatories to the ICANN Petition
Acxiom
adidas
Adobe Systems Incorporated
Allstate Insurance Company
American Express
Autodesk, Inc.
Brinker International
Burger King Corporation
The Coca-Cola Company
Chrysler Group LLC
Church's Chicken
Combe Incorporated
ConAgra Foods
Costco Wholesale Corporation
Darden Restaurants, Inc.
Dell Inc.
Dunkin' Brands, Inc.
Educational Testing Service (ETS)
Fidelity Investments
Ford Motor Company
General Electric Company
GroupM
Hack Creative
Havas
Hewlett-Packard Company
Hunter Douglas NA
J.C. Penney Company, Inc.
Johnson & Johnson
Kellogg Company
Kraft Foods
La Quinta
Liberty Mutual
MillerCoors
Money Mailer of Amarillo
Nationwide Mutual Insurance Company
Neon Sun Tanning Salon
Nestle USA
ORCI
OSI Restaurant Partners, LLC
Papa John's
Procter & Gamble
Publicis Groupe
Pulte Group
Reebok
Rollins, Inc.
Samsung
Siemens AG
Siemens Corporation
The J.M. Smucker Company
Toyota
US Bank
Vanguard
Verge
Walmart
Exhibit B
Coalition for Responsible Domain Oversight
November 10, 2011
Hon. John Bryson,
Secretary,
U.S. Department of Commerce,
Washington, DC.
Dear Secretary Bryson:
We, the undersigned, representing large and small business, in
virtually every industry sector, in the United States and around the
world, are writing to express our strong concern with respect to the
June 2011 decision by the Internet Corporation for Assigned Names and
Numbers (ICANN) to approve the top-level domain (gTLD) Applicant
Guidebook and to move forward with plans to open the new gTLD
application window on January 12, 2012 (the ICANN plan, decision or
ICANN Proposal) on a virtually unlimited basis.
ICANN's action was taken despite widespread and significant
objections raised throughout the process by many in the global
community of Internet users. ICANN's decision was not made in the
public interest, does not promote consumer trust, and does not benefit
the public, as required in the Affirmation of Commitments between ICANN
and the National Telecommunications and Information Administration
(NTIA).
Moreover, additional facts have come to light since ICANN announced
the most recent iteration of the Applicant Guidebook--including rounds
of troubling conflict of interest questions--which cast a shadow over
the entire process leading up to ICANN's decision. Those facts,
combined with the current state of the global economy, raise
substantial issues regarding the wisdom of moving forward with ICANN's
plan, given its undisputed costs and its merely putative benefits.
The ICANN Proposal would unduly burden a diverse range of public
and private brand holders, as they would be forced to spend ever-
greater amounts of time and resources simply to protect their brands.
In addition, there is an unacceptably high risk that the ICANN plan
would confuse consumers, increase the already unacceptable level of
fraud and identity theft on the Internet, create new opportunities for
Internet crime, and jeopardize cyber security. Businesses and not-for-
profits alike have repeatedly raised these issues with ICANN over the
last four years, with no acceptable resolution.
For these reasons, we respectfully call on the Department of
Commerce and, specifically the NTIA, to persuade ICANN to postpone the
opening of the top-level domain application window unless or until such
time as ICANN convincingly demonstrates that unlimited TLD name
expansion would:
Promote consumer trust;
Enhance Internet security;
Promote widespread economic benefits across diverse economic
sectors and stakeholders; and
Demonstrate that these benefits will exceed the costs that
such gTLD expansion would inevitably impose on the global
Internet community.
Respectfully submitted,
Organizations
AdClub Cincinnati
American Advertising Federation (AAF)
AAF-Amarillo
AAF-Dallas
AAF-Fort Worth
AAF Hampton Roads
American Advertising Federation Baltimore, Inc.
American Advertising Federation of Des Moines
American Apparel & Footwear Association (AAFA)
American Association of Advertising Agencies (4As)
American Beverage Association (ABA)
American Council of Life Insurers (ACLI)
American Health Care Association (AHCA)
American Insurance Association (AIA)
American Intellectual Property Law Association (AIPLA)
American Society of Association Executives (ASAE)
Association of Canadian Advertisers (ACA)
Association of National Advertisers (ANA)
Austin Advertising Federation
Boise Advertising Federation
Cable Advertising Bureau (CAB)
Consumer Electronics Association (CEA)
Direct Marketing Association (DMA)
European Association of Communications Agencies (EACA)
European Publishers Council (EPC)
Food Marketing Institute (FMI)
Grocery Manufacturers Association (GMA)
Idaho Advertising Federation
Idaho Falls Advertising Federation
Intellectual Property Owners Association (IPO)
Interactive Advertising Bureau (IAB)
IAB Europe
Lewis-Clark Valley Advertising Federation
Magic Valley Advertising Federation
Mobile Marketing Association (MMA)
MPA--the Association of Magazine Media
National Association of Broadcasters (NAB)
National Association of Manufacturers (NAM)
National Confectioners Association
National Council of Chain Restaurants (NCCR)
National Restaurant Association (NRA)
Pocatello Advertising Federation
Promotion Marketing Association (PMA)
Radio Advertising Bureau (RAB)
Retail Industry Leaders Association (RILA)
Television Bureau of Advertising (TVB)
U.S. Chamber of Commerce
World Federation of Advertisers (WFA)
Corporations
Acxiom
Adobe Systems Incorporated
Allstate Insurance Company
American Express
Brinker International
Burger King Corporation
The Coca-Cola Company
Combe Incorporated
ConAgra Foods
Costco Wholesale Corporation
Darden Restaurants, Inc.
Dell Inc.
Dunkin' Brands, Inc.
Educational Testing Service (ETS)
Fidelity Investments
Ford Motor Company
General Electric Company
Hack Creative
Hewlett-Packard Company
Hunter Douglas NA
J.C. Penney Company, Inc.
Johnson & Johnson
Kellogg Company
La Quinta
Liberty Mutual
MillerCoors
Money Mailer of Amarillo
Nationwide Mutual Insurance Company
Neon Sun Tanning Salon
Nestle USA
ORCI
OSI Restaurant Partners, LLC
Papa John's
Procter & Gamble
Publicis Groupe
Pulte Group
Samsung
US Bank
Vanguard
Verge
cc: Lawrence E. Strickling, Assistant Secretary for Communications
and Information and Administrator, National Telecommunications and
Information Administration, U.S. Department of Commerce
Fiona Alexander, Associate Administrator, National
Telecommunications and Information Administration, U.S. Department of
Commerce
Vernita Harris, Deputy Associate Administrator of the Office of
International Affairs, National Telecommunications and Information
Administration, U.S. Department of Commerce
Suzanne Murray Radell, Senior Policy Advisor, National
Telecommunications and Information Administration, U.S. Department of
Commerce
Elizabeth Bacon, Telecommunications Policy Specialist, National
Telecommunications and Information Administration, U.S. Department of
Commerce
Cameron F. Kerry, General Counsel, U.S. Department of Commerce
Daniel K. Inouye, Chairman, Committee on Appropriations, U.S.
Senate
John D. Rockefeller IV, Chairman, Committee on Commerce, Science
and Transportation, U.S. Senate
Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate
Thad Cochran, Ranking Member, Committee on Appropriations, U.S.
Senate
Kay Bailey Hutchison, Ranking Member, Committee on Commerce,
Science and Transportation, U.S. Senate
Charles E. Grassley, Ranking Member, Committee on the Judiciary,
U.S. Senate
Barbara Mikulski, Chair, Subcommittee on Commerce, Justice, Science
and Related Agencies, Committee on Appropriations, U.S. Senate
Al Franken, Chairman, Subcommittee on Privacy, Technology and the
Law, Committee on the Judiciary, U.S. Senate
Tom Coburn, Ranking Member, Subcommittee on Privacy, Technology and
the Law, Committee on the Judiciary, U.S. Senate
Ron Wyden, Chairman, Subcommittee on International Trade, Customs,
and Global Competitiveness, Committee on Finance, U.S. Senate
Harold Rogers, Chairman, Committee on Appropriations, U.S. House of
Representatives
Fred Upton, Chairman, Committee on Energy and Commerce, U.S. House
of Representatives
Lamar Smith, Chairman, Committee on the Judiciary, U.S. House of
Representatives
Norm Dicks, Ranking Member, Committee on Appropriations, U.S. House
of Representatives
Henry A. Waxman, Ranking Member, Committee on Energy and Commerce,
U.S. House of Representatives
John Conyers, Ranking Member, Committee on the Judiciary, U.S.
House of Representatives
Bob Goodlatte, Chairman, Subcommittee on Intellectual Property,
Competition and the Internet, Committee on the Judiciary, U.S. House of
Representatives
Frank Wolf, Chairman, Subcommittee on Commerce, Justice, Science
and Related Agencies, Committee on Appropriations, U.S. House of
Representatives
Mel Watt, Ranking Member, Subcommittee on Intellectual Property,
Competition and the Internet, Committee on the Judiciary, U.S. House of
Representatives
Chaka Fattah, Ranking Member, Subcommittee on Commerce, Justice,
Science and Related Agencies, Committee on Appropriations, U.S. House
of Representatives
Exhibit C
Governmental Advisory Committee
Dakar, 27 October 2011
GAC Communique--Dakar
I. Introduction
The Governmental Advisory Committee (GAC) of the Internet
Corporation for Assigned Names and Numbers (ICANN) met in Dakar,
Senegal during the week of October 22-27, 2011. Forty-nine Governments
participated in the meeting: 46 present and 3 by remote participation
and six Observers. The GAC expresses warm thanks to the local hosts,
The Ministry of Communication, Telecommunications and Information
Technology (MICOMTELTIC) and the Regulatory Authority for
Telecommunications and Post (ARTP) for their hospitality in organizing
the meeting and ICANN for supporting the GAC during the meeting.
II. New gTLDs
The GAC further discussed and decided on the formulation of GAC
advice for inclusion in Module 3 of the Applicant Guidebook [Annex I].
During the discussion ICANN Staff underlined their understanding
that advice regarding the definition of Geographic Names should be
adopted by the GAC.
The GAC congratulates the JAS working group on the final report and
recommendations, which are consistent with GAC advice. The GAC looks
forward to the Board providing clear timelines for implementation of
the recommendations to enable needy applicants to join in full and
meaningfully in the first round.
The GAC raised concern about the unpredictability of the actual
number of applications that governments would have to digest to proceed
after the end of the application period. The GAC made clear, that if
the number of applications published by ICANN significantly exceeds
500, GAC members might not be able to process a very large number of
applications in the very short early warning procedure and in the
limited time for issuing GAC advice on all these strings.
Further, the GAC asked ICANN for clarification about its intention
to process these applications in batches of 500, in the case that there
are more than SOD applications. The GAC urges ICANN to clarify the
procedures and implications for applicants being processed in different
batches, as this might have implications for competition and
applicants' business models.
Following presentations by the ICANN staff and the Security and
Stability Advisory Committee, the GAC took note of the SSAC
consideration of the combined impact of new gTLDs and other changes
such as the introduction of 1Pv6, DNSSEC and IDNs to the root. The GAC
welcomes the confirmation of the commitment by the ICANN Board to
provide a full report with a complete analysis, including all
underlying data, of the root system scalability well before the opening
of the new gTLDs application round. The GAC further welcomes the
confirmation of the commitment by the Board to evaluate the impact on
the system after the 1st round, with the understanding that the launch
of a second round is contingent on the outcome of this evaluation, in
particular the absence of negative effects on the root system. The GAC
believes that in order for this evaluation to be effective, an
appropriate and trustable monitoring system needs to be in place.
In its discussions with the Board regarding the Communication Plan
for new gTLDs, the GAC emphasised the importance of promoting the gTLDs
application round in all countries, including developing countries. The
GAC suggested that levels of awareness be continually assessed and
reviewed, and priorities and target areas under the Plan be adjusted
accordingly in the run up to the launch of the round.
The GAC welcomed the assurances received from the Board and staff
that the evaluation of applications will ensure a level playing field
for applicants and that any conflicts of interest will be identified
and avoided accordingly.
III. Law Enforcement (LEA) Recommendations
In recent years, the Internet has grown to have over two billion
users and be a significant contributor to the global economy.
Cyber-crime is a growing threat to the security and stability of
the Internet, with broad and direct public policy impacts. Recent
estimates suggest that the direct financial impact of cyber-crime is
extremely significant.
Law enforcement agencies have identified a series of specific
problems which are limiting their ability to address this growing
problem.
As part of this, law enforcement agencies have identified specific
areas of concern in the ICANN context, relating to contractual
weaknesses and a lack of necessary due diligence.
To address these urgent problems, in 2009 law enforcement agencies
made 12 concrete recommendations to reduce the risk of criminal abuse
of the domain name system.
These recommendations were informally socialized with the registrar
community, the GAC, and with ICANN compliance staff over the course of
several months, before the GAC advised the Board in its Brussels
communique that it formally endorsed the recommendations.
Direct exchanges between law enforcement agencies and registrars
continued in September 2010 in Washington D.C., in February 2011 in
Brussels, and during the March and June 2011 ICANN meetings.
As a complement to the June exchanges in Singapore, the GAC urged
the Board to support actions necessary to implement those
recommendations as a matter of urgency.
To date, none of the recommendations have been implemented, and the
risks remain. The GAC therefore advises the ICANN Board to take the
necessary steps to ensure that ICANN's multistakeholder process
effectively addresses these GAC-endorsed proposals as a matter of
extreme urgency.
IV. Accountability and Transparency Review Team Recommendations (ATRT)
The GAC welcomes the update provided by ICANN staff on the ATRT
Recommendations progress and the suggestions presented with regards to
the implementation of recommendations 9 through 14 on the GAC role,
effectiveness and interaction with the Board.
The GAC looks forward to an expedited implementation of the Joint
Working Group and ATRT recommendations and is keen to continue working
with the Board on the Recommendations related to the GAC.
V. Conflict of interest
The GAC expresses extreme concern about the inadequacy of the
existing rules of ethics and conflict of interest in the light of
recent events and therefore welcomes the approval of the motion by the
Board Governance Committee on 1S September 2011concerning ``ethics and
conflicts of interest''. The GAC looks forward to the publication of a
timeline with clear and effective actions as a conclusion of the Dakar
meeting or shortly thereafter. In order to ensure the legitimacy and
sustainability of the multi stakeholder model as enshrined in ICANN,
the GAC underlines the extreme urgency of putting in place effective
and enforceable rules on conflicts of interest.
The GAC will keep this important issue under review and may come
forward with further advice before the Costa Rica GAC meetings.
VI. Meeting with the Generic Names Supporting Organisation (GNSO)
The GAC and the GNSO exchanged views on a number of issues,
beginning with an overview by ICANN staff of the GNSO policy
development process. Consistent with the recommendations of the
Accountability and Transparency Review Team and the related GAC-Board
Joint Working Group, the GAC stressed its interest in ensuring that GAC
views are provided and taken into account at early stages in the policy
development process.
The meeting also discussed the implementation of the Law
Enforcement Agency (LEA) recommendations to mitigate Domain Name System
abuse, which were endorsed by the GAC in June 2010. The GAC expressed
its disappointment that registrars were only able to report on their
consideration of three of the twelve LEA Recommendations. Further, the
reported progress fell substantially short of what GAC members believed
had been achieved during its meetings with registrars in Singapore in
June 2011. The GAC also expressed concern that there was no clarity on
how the other nine recommendations were being progressed, despite the
registrars' agreement at the Singapore meeting to provide regular
status
reports. The GAC informed the GNSO Council of its intention to
request the ICANN Board to take prompt and concrete action to implement
the GAC/LEA recommendations.
The meeting also addressed the GAC's proposal to the GNSO on the
protection mechanism for the International Olympic Committee and Red
Cross/Red Crescent names at the top and second levels. The GAC
requested feedback from the GNSO on the proposal as a first step in
collaborating on advice for the ICANN Board in this regard, consistent
with the ICANN Board Resolution in Singapore.
The GAC looks forward to further engagement with the GNSO to work
more effectively within the ICANN processes and reinforce the
sustainability of the multi-stakeholder model.
VII. Meeting with the At-Large Advisory Group (ALAC)
The GAC met with the ALAC to discuss Conflict of Interest issues
within the ICANN Board and staff. The GAC agrees that this is a
critical matter that needs to be addressed as a high priority within
the community.
The GAC and ALAC also discussed the Joint Applicant Support (JAS)
Working Group as well as the ALAC and GAC Joint Statement. The GAC
expects a decision to be taken for implementation in time for the
opening of the first new gTLD round.
In light of the common interest of advancing improvements in the
ICANN model, the GAC and ALAC also discussed the ongoing work of the
Accountability and Transparency Review Team (ATRT). The GAC shared the
areas identified as a priority in the framework of the ATRT and the
Joint Working Group recommendations, looking forward to an expedited
implementation.
VIII. GAC Operating Principles
The GAC amended Principle 47 of its Operating Principles clarifying
its understanding of consensus. The definition now introduced derives
from United Nations practice and understands consensus as adopting
decisions by general agreement in the absence of formal objections. The
GAC noted that according to UN practice individual members may make
reservations, declarations, statements of interpretation and/or
statements of position regarding a consensus decision, provided such
texts do not represent an objection to the consensus [Annex II].
IX. Joint session with the Country Code Names Supporting Organization
(ccNSO)
The GAC met with the ccNSO to discuss the progress and ongoing work
of the Framework of Interpretation cross-community Working Group (Fol)
on delegation and redelegation, and the mechanisms for the GAC to
provide feedback and contribute to this work within a timeline that the
ccNSO has provided. In addition, the ccNSO shared an update of its
current work areas and its organisational structure.
The GAC is eager to further engage with the ccNSO to provide timely
inputs on the different stages of the Fol work.
X. Meeting with the Security and Stability Advisory Committee (SSAC)
The GAC thanks the SSAC for providing an update on its work
including blocking and reputation systems, WHOIS matters and single
label domain names. Further, the GAC thanks the SSAC Chair for
discussions on Root Zone Scaling and Resource Public Key Infrastructure
(RPKI).
The GAC looks forward to receiving further updates on DNS blocking
matters and other relevant security and stability related matters.
XI. Meeting with the Nominating Committee (NomCom)
The GAC met with the Nominating Committee and discussed the skill-
sets needed of an ICANN Director, as outlined in the Accountability and
Transparency Review Team (ATRT) recommendations to improve the
selection process. The NomCom invited individual GAC members to provide
further inputs.
XII. Election of Vice-Chairs
The GAC has reelected the current vice-chairs, Choon-Sai Lim
(Singapore), Maria Hall (Sweden) and Alice
Munyua (Kenya) to continue their mandate for another year.
* * *
The GAC warmly thanks all those among the ICANN community who have
contributed to the dialogue with the GAC in Dakar.
The GAC will meet during the period of the 43''ICANN meeting in San
Jose, Costa Rica.
Annex I
Applicant Guidebook Module 3.1: GAC Advice on New gTLDs
ICANN's Governmental Advisory Committee was formed to consider and
provide advice on the activities of ICANN as they relate to concerns of
governments, particularly matters where there may be an interaction
between ICANN's policies and various laws and international agreements
or where they may affect public policy issues.
The process for GAC Advice on new gTLDs is intended to address
applications that are identified by governments to be problematic,
e.g., that potentially violate national law or raise sensitivities.
GAC members can raise concerns about any application to the GAC.
The GAC as a whole will consider concerns raised by GAC members, and
agree on GAC advice to forward to the ICANN Board of Directors.
The GAC can provide advice on any application. For the Board to be
able to consider the GAC advice during the evaluation process, the GAC
advice would have to be submitted by the close of the Objection Filing
Period (see Module 1).
GAC Advice may take one of the following forms:
I. The GAC advises ICANN that it is the consensus of the GAC that a
particular application should not proceed. This will create a strong
presumption for the ICANN Board that the application should not be
approved.
II. The GAC advises ICANN that there are concerns about a
particular application ``dot-example''. The ICANN Board is expected to
enter into dialogue with the GAC to understand the scope of concerns.
The ICANN Board is also expected to provide a rationale for its
decision.
III. The GAC advises ICANN that a particular application should not
proceed unless remediated. This will raise o strong presumption for the
Board that the application should not proceed unless there is a
remediation method available in the Guidebook (such as securing one or
more government's approval) that is implemented by the applicant.
Annex II
Operating Principles Article XII Principle 47
The GAC works on the basis of seeking consensus among its
membership. Consistent with United Nations practice,\1\ consensus is
understood to mean the practice of adopting decisions by general
agreement in the absence of any formal objection. Where consensus is
not possible, the Chair shall convey the full range of views expressed
by members to the ICANN Board.
---------------------------------------------------------------------------
\1\ Statements by GAC members related to such advice will be posted
on the GAC website.
Senator Klobuchar. Thank you, Mr. Chairman.
Ms. Dyson.
STATEMENT OF ESTHER DYSON, FOUNDING CHAIRMAN OF ICANN, 1998-
2000; CURRENTLY AN INDEPENDENT ANGEL INVESTOR
Ms. Dyson. Good morning, Chairman, Senator Klobuchar,
Senator Cantwell. I'm Esther Dyson. I'm honored to be here.
I was the founding chairman of ICANN from 1998 to 2000. In
fact, the first and only time I testified previously in
Congress I was defending ICANN against charges that it was
imposing a tax on the Internet. At the time, I believe, those
charges weren't true. We were charging sensible, realistic
costs to maintain a system that already existed.
At that time, I also believed that adding new TLDs to the
domain name system would be a good idea. However, over time and
in the face of continuing disappointments with what ICANN did
and became, I've changed my mind, and that's why I'm here
today.
First of all, ICANN's process of consulting with the public
hasn't really worked. I'm the only person here talking on
behalf of the real public, not on behalf of large trademark
owners, not on behalf of big businesses, not on behalf of
governments, not on behalf of nonprofits, but actually on
behalf of the users, who I think stand to be extremely confused
if there's a proliferation of top-level domain names.
Either marriott.com and marriott.hotel are the same, in
which case marriott.hotel is simply redundant; or they're
different, in which case it's simply confusing. Then add dot-
hotel, and then hotel.marriott, residenceinn.marriott, and so
on. Now multiply that by hundreds or thousands of different
top-level domains. It will create a profusion of new names for
Marriott to protect without creating any additional value,
because there remains only one Marriott.
That's why I think this whole idea is fundamentally
misguided. It's akin to derivatives, which also create great
complexity and new opportunities for transactions and, yes,
both derivatives and domain names create opportunities for
entrepreneurs. But they don't really create any value for the
economy. That's my problem with this. I don't think any
particular domain name is evil or should be illegal, but it's a
big waste.
Finally, you could ask, what should ICANN do and what will
happen if we have a lot of new domain names? I studied
economics in college and I didn't learn a whole lot there, to
be honest, but I did learn how to think. Fundamentally,
economics is about math and common sense. Right now what we
have is an artificially restricted scarcity of domain names. We
can enlarge the group of domain names, in which case it will be
artificial and somewhat enlarged, but the same issues will
happen. Or we can say: We really believe in no scarcity at all;
let's have as many domain names as anybody wants. And then you
don't really need ICANN because there's nothing to protect. Or
we can stick with the current situation and perhaps some
measured expansion to accommodate non-Latin alphabets and the
like.
In the long run, probably people will start looking for
everything through the search engines and so domain names won't
matter. But with ICANN's current plan, there's going to be a
period to great confusion in the meantime. I don't think it
makes sense to go through a period of several years where
there's a profusion of domain names, a proliferation of the
kinds of costs and abuse Angela Williams and Dan Jaffe talked
about. It just doesn't make sense.
I understand ICANN is not responsible to Congress. I'm not
suggesting that you in this room do much, other than what you
are doing here, which is to raise the public's awareness of
this issue. And then I hope that ICANN will go back and
reconsider and somehow figure out how to actually get real
consumers involved and maybe just stick to the international
domain names which do make sense and which with luck will be
properly regulated, largely by other governments.
But in general, I don't see the point of this program.
Thank you very much.
[The prepared statement of Ms. Dyson follows:]
Prepared Statement of Esther Dyson, Founding Chairman of ICANN, 1998-
2000; Ccurrently an Independent Angel Investor
Thank you, Chairman Rockefeller, Ranking Member Hutchison, esteemed
Senators, Committee staff and others, for your attention to this
important issue. As a private citizen with a variety of affiliations
but beholden to no single employer or institution, I am honored to be
here today.
My name is Esther Dyson. I assume that I was invited to testify
before this Committee primarily because I was the founding chairman of
ICANN's board, from its inception in September 1998 until late in 2000.
I continued as a member of the ICANN At-Large Advisory Committee for a
year or two after that, and subsequently went on with the rest of my
life. I am a casual user of domain names; I have a couple registered
that I don't use, and then I have owned and used edventure.com since
before my ICANN tenure. As an investor, a board member of non-profit
and for-profit companies and as a user of the Internet, I do have a
substantial interest in freedom of speech and freedom to innovate.
Other than that, I have no particular business interests in the
domain name system, and I paid my own way here today. Moreover, unlike
most of the public, I have the private resources, the time and the
insider knowledge to come here to give you what I hope you will find to
be an informed and useful perspective.
I come as a loving critic to improve ICANN, not to bury it.
Some Brief History
When I joined the board of ICANN back in 1998, the majority of its
members had almost no experience with the Internet and attempted to
serve the interests of a broad public. At the time, our primary mission
was to break the monopoly of Network Solutions (which managed .com
among other registries), first by separating the functions of registry
(which manages the list of names in a particular top-level domain) and
registrar (which resells second-level domain names to the public).
We succeeded in that, and we also managed to launch a few new TLDs,
including .biz, .info, .museum and .coop. Of those, only .biz and .info
have had much success. Separately, a number of creative people--whose
initiative I sincerely applaud--made special-purpose TLDs out of
country codes (ccTLDs) such as .tv (Tuvalu), .md (Moldova), .ly (Libya)
and most recently .co (Colombia).
At the same time, it's fair to say that .com retained its first-
mover advantage as by far the leading TLD. Users instinctively type
COMPANYNAME.com into their browsers.
I myself was a big fan of the concept of new TLDs. I believed that
it would broaden the market, encourage innovation (as with the
repurposed ccTLDs I mentioned above). . .and besides, why should ICANN
enforce artificial scarcity?
But I have since changed my mind. Now I would like to explain why,
and finally to suggest some paths forward.
Why I Changed My Mind--Confusing to the Public
After my two-year term as chairman of ICANN expired in 2000, I
joined the At-Large Advisory Committee. Our mission was to make sure
the voice of the ultimate users--not just the sellers, resellers and
buyers of domain names--was heard. That turned out to be an almost
impossible task. Naturally enough, normal members of the public did not
have the time or interest (or funds) to involve themselves in ICANN's
business. Despite numerous attempts, we failed to atttract more than a
few thousand people at best to our various meetings, online
conversations, requests for comment and the like. Our online message
board was mostly painful to read. When I finally resigned from the
ALAC, I too found ICANN too removed from my daily interests to pay much
attention to its activities.
Why I Changed My Mind--Lack of Oversight
Our premise for new TLDs was that we would select registry managers
who would add value to their TLDs and monitor the behavior of their
registrars, who would in turn make sure that the registrants followed
whatever requirements the registries imposed. In fact, the business
overall has become one of sleazy marketing practices, front-running
(where registrars or related parties buy names for their own accounts,
competing unfairly with their customers) and a high proportion of
spammy domains. Unfortunately, the ease and lack of accountability with
which someone can buy a domain name has led to a profusion of spam,
phishing and other nefarious sites. There's no reason to think the
situation would be any better with the next set of new TLDs; there
would simply be more of them.
And as the case of .xxx shows, many of the second-level domain-name
purchasers who do have honest intentions will probably be more
interested in defensive registrations rather than adding value to the
system. (One such case is that of Meetup.com, out of whose office I
work and on whose board I sit. Meetup has attempted to register
Meetup.xxx, but has been told the name has been reserved on the
``premium queue'' to be auctioned off to the highest bidder. Even more
perversely, Meetup cannot even bid at auction for its own trademarked
name unless it somehow becomes registered as a member of the ``adult
community,'' which is at odds with the very nature of its business and
the very reason it sought to reserve the name. Meetup's only remedy
ultimately will be to file an expensive and time-consuming trademark
lawsuit.)
Why I Changed My Mind--Misallocation of Resources
Our initial assumption was that new TLDs would be relatively cheap.
But ICANN's current plan envisions an expensive application process and
expensive registrations.
The amount of money likely to be spent on these new TLDs--both by
new applicants and registrants, and by incumbents protecting their
names--is huge, at a time when businesses and consumers are just
scraping by. I believe in innovation, but only if it adds value. In
this case, most of the new domains would simply add friction.
As with .xxx, where many of the registrants are actually companies
who want to make sure their name is not used in .xxx, I predict that
many or most of the new registrations will be defensive. Marriott.com,
for example, works fine; why do they need marriott.hotels except
defensively? (Or why do they need to own .marriott?)
The rationale is that there's a shortage of domain names . . . but
actually, there's a shortage of space in people's heads. When you add,
for example, .hotel, you are not creating new space; you are carving up
the «hotel» space in people's heads into .com and .hotel.
So was that Marriott.com or Marriott.hotel? or dyson.com or
dyson.hotel? if I decide to rent out my apartment. Consumers will
inevitably be confused, and the primary beneficiaries will be Google,
trademark lawyers. . .and of course the registries and registrars.
In short, it's as if you owned a field, and you paid a border
guard. Now the border guards want you to pay separately for each little
chunk in your field; it's still the same field, but now it's carved
into ever-smaller pieces. To use my own small field as an example, the
field was originally called edventure.com. Now the new chunks could be
labeled edventure.angel, edventure.blog, edventure.nyc, edventure.post,
edventure.fin . . . and perhaps I'll also be solicited to buy the TLD
.edventure so that some educational or editorial group won't get hold
of it.
In the end, new domain names are somewhat like derivatives: They
add complexity and transactions and lots of rights and obligations
without actually creating anything of value.
Context: Innovation Can Happen Without New TLDs
I have heard from people who say that the new TLDs will lead to
great innovation. I once thought so too. I had visions of .fin for For
example, there are people who want to launch .eco and .green as the
foundation of a «green» marketing campaign that would
purportedly do untold good for the world at large. But what's wrong
with edventure.com/green?
Meanwhile, there is innovation in namespaces, but it comes with
overall innovation. One of the best and simplest examples I can think
of is twitter, where I am @edyson or http://twitter.com/#!/edyson--a
fine use of an existing TLD.
Remedies . . .
Of course, my task here does not end with complaining. What should
be done? First of all, it is not the role of Congress to tell ICANN
what to do. ICANN is accountable to the worldwide public, not to the
U.S. Government (except through one limited contract). But it is the
role of Congress to shed light on issues of public interest, and to
suggest politely that ICANN follow through more fully on its
acknowledged obligation to solicit public feedback. As I discovered
during my time at ICANN, it's hard to get the public interested in
these matters. (In that respect too, domain names are like
derivatives.)
As I mentioned, ICANN has indeed followed the process of soliciting
public opinion, but I do not believe they have obtained «informed
consent,» in the sense that people actually understand the
issues.
Much Broader Consultation With the Public
Therefore, although personally I would like to see ICANN simply
abandon this program, I have been told again and again that this is not
«realistic.» If that is indeed the case, I would recommend
that ICANN rapidly re-launch its consultation process with much broader
outreach. Perhaps these hearings and the subsequent press coverage will
help to inform the broader public and shade ICANN's approach to new
TLDs.
Much Stronger Front-End Protection
At the same time, ICANN could offer much broader and easier
protection (from similar-sounding TLDs) to existing registrants, akin
to what ICANN itself has and what the Red Cross is asking for. Of
course, this would obviate much of the interest in the new domain
names, but it is a proper obligation for ICANN to undertake, in my
opinion.
Conclusion
The current domain name system in some ways is an accident of
history. ICANN was created to regulate it, independently of any
government and on behalf of the Internet--and world--community as a
whole. Just as with fishing rights, communications spectra, taxi
medallions and other «commons,» there's a delicate balance
between too few and too many domain names, which this new initiative
may well upset if it goes forward without more serious study. As the
old saying goes: If it ain't broke, don't fix it!
I would welcome any questions.
Senator Klobuchar. Thank you very much.
We'll now turn it over to Chairman Rockefeller.
STATEMENT OF HON. JOHN D. ROCKEFELLER IV,
U.S. SENATOR FROM WEST VIRGINIA
Senator Rockefeller. I went to college and I didn't learn
very much either, so don't feel badly about it.
This hearing is interesting because--and I missed the first
part and I have to leave after I make a couple of remarks,
because I have the worst schedule in the history of the whole
week.
[Laughter.]
Economists I think are not entirely in agreement as to
whether this is a good thing or a bad thing. So to declare it a
bad thing--trying to be a neutral chair as we look at this
whole thing--is a point of view, but it's a point of view which
I also recognize has some people on the other side of it.
Cybersquatters are an abomination. So are people who abuse
children through websites on Facebook and all the rest of it.
Lots of abominable people around. But the question is are we
going to have hundreds, are we going to have thousands of new
names? If you look at dot-com, dot-net, dot-org, and then you
sort of go to dot-hotel, dot-baseball, dot whatever it is, how
long does that extend out? How much actual difference does that
actually make?
I have to be very sensitive to the question of the money
that you feel you're going to have to spend to protect yourself
against cybersquatters, and I think they're going to be
endless. They will go on as long as the Internet goes on.
Hopefully they won't blow us up altogether on a worldwide
basis, because they can do that, they can shut us down, the
Internet can. But that's not the point.
I think we have to get used to dot-hotels, I think we have
to get used to dot-auto. I start from that position, but I
listen. And I think a surge of new names and addresses can
create opportunities. Whether they will or not or whether they
will at such a cost-inefficient ratio, I do not yet know. And
that's part of what we're discussing today.
If ICANN is determined to move forward, it surely better do
so slowly and cautiously, not try to do this in a tranche or
two. The potential for fraud, the potential for consumer
confusion can lead to fraud without a knowing act,
cybersquatting, all of these are massive. Scaling back the
initial round of top new-level domains introduced in 2013 may
be a prudent approach if that's the way we're going to go.
Companies, nonprofit organizations, and others are rightly
concerned that this new landscape will require them to spend
money. You have said that. I didn't hear the first three, but
karma told me you said that.
So it is my hope that we can phase this expansion over
time. If we're going to do it, we should phase it over time,
not be regretful after the fact that it was done too hastily.
That's the point. If we can make sure that we don't have to
look back with regret, then we will have not been too hasty.
You know, that said, there are exciting new possibilities
out there. This is intriguing in many ways. Companies and
others will be able to place their name. You can get dot-
search, dot-banks. I mentioned dot-baseball. I care about that
more than I should. And with the current plan, the sky is the
limit. That's both the challenge and the threat, from your
point of view, and maybe mine.
So as the Senate committee tasked with examining issues
related to the Internet, we have to understand what this really
will mean for the people you purport to represent, but we all
feel that we represent, too, for the millions of Americans who
use the Internet on a daily basis and the thousands of
businesses and organizations who do exactly the same.
So the matter of unintended consequences strikes me as a
very important subject for today. One cannot--if they're
unintended, by sort of definition one can assume that they will
happen, but one cannot predict absolutely they will happen. An
unintended consequence is something which has not yet happened,
and it could be a good consequence, it could be a bad
consequence, usually bad.
I know ICANN has undergone a very lengthy process on the
top-level domain expansion. The decisions will hopefully spur
additional competition and innovation on the Internet. I tend
to look upon that as a good thing. However, many in the
Internet community--witness what you were saying--don't like
the unintended consequences and the manner in which this
expansion is being conducted.
So today what we're going to do is discuss those
opportunities. It's important to remember that ICANN is
nonprofit, and it was established in 1998 at the behest of
Department of Commerce. The U.S. Government rightly decided
that a private entity representing the interests of the entire
Internet community should administer the critical
infrastructure of the Internet.
So let us go forward. The multi-stakeholder approach will
not work without all of you and without us. We need to have a
constructive attitude within ICANN, within NTIA, and the
Internet community. So here we are launching on something new.
Those who are satisfied with what is the current situation are
almost necessarily nervous about a different future. Is it
necessary to be nervous about an unknown future when economists
cannot agree whether it will be a good thing or a bad thing? I
think it's a natural thing, and that's the way you feel and
therefore that's what counts. That's what we have to hear.
I remain open to the discussion and grateful to Senator
Klobuchar.
Senator Klobuchar. Chairman Rockefeller, in light of time
do you want to do your questions now?
Senator Rockefeller. No, thank you.
Senator Klobuchar. OK, very good. And I know Senator
Boozman's going to make a few comments here.
STATEMENT OF HON. JOHN BOOZMAN,
U.S. SENATOR FROM ARKANSAS
Senator Boozman. Thank you, Senator. I think, in the
interest of time, as the Chairman mentioned there's just so
much going on, that I will hold off for now.
Senator Klobuchar. OK, very good. And if my other two
colleagues don't mind, I think we'll just get started with the
questions, and if there is time remaining before we have to end
at ten minutes to twelve o'clock, then we'll do some statements
at that time, and there may be.
I'm going to get started here. Mr. Pritz, I have some
questions about the funds that ICANN will generate through this
proposed program for expanding top-level domains. As I
understand it, ICANN is charging $185,000 for each top-level
domain application; is that right?
Mr. Pritz. That's correct.
Senator Klobuchar. OK. And then how many applications do
you expect to receive? I've heard there could be hundreds. Is
that right?
Mr. Pritz. That's right. That number is a matter of great
speculation. When we first started making estimates, the number
was thought to be 300 to 500. Over time and as interest is
generated, I think the number is greater than that now. But
that's sort of rumor. We're kind of----
Senator Klobuchar. You thought it was going to be 3 to 5
and it went up to hundreds?
Mr. Pritz. No. We thought it was going to be 300 to 500.
I'm sorry.
Senator Klobuchar. 300 to 500. And now----
Mr. Pritz. Now it's greater than that.
Senator Klobuchar. You think it might be thousands now?
Mr. Pritz. Not thousands, but 500 to 1,000 or maybe
slightly over 1,000. And that's based on hearsay. A lot of
companies that are planning for this are keeping their plans
close to the vest, which makes a lot of sense because it's a
business strategy. But I know that a lot of large corporations
are developing different strategies for taking advantage of the
opportunities, and that other segments that are interested are
small communities. There is interest in internationalized
domain names, which are names in other languages than English
to the right of the dot, which will open up some additional
opportunities; and also there is----
Senator Klobuchar. What if more than one entity bids for
one of these? Then what are you going to do? Like one hotel
chain wants to be dot-hotel and another hotel chain wants to be
dot-hotel?
Mr. Pritz. That's a really interesting question. It was the
matter of a great amount of work. There's really three steps in
what we call a contention resolution process, if two entities
apply for the same name. First, the entities are encouraged to
work it out between themselves. So rather than other arenas, we
encourage them to get together and try to come to some
solution, either by combining their efforts or having some
other sort of accommodation.
There's also an accommodation for certain types of TLDs
that are labeled community TLDs. So recognizing the value that
communities bring to the DNS, the policy is to encourage the
development of community-type TLDs. TLD applicants that can
establish that they are in fact community TLDs by being weighed
against certain criteria will be given a preference. So a
community TLD would be awarded the TLD before a non- community
TLD. And then finally----
Senator Klobuchar. Are you talking like NYC or something
like that?
Mr. Pritz. It could. There's criteria in the guidebook that
says you have to be part of a longstanding community, that the
name you are applying for is really closely related to the
community, that you have the support of the community, that
there's not--there's not any contradiction from that community.
So it's a set of criteria that are really scored.
Senator Klobuchar. What about Ms. Williams' concerns about
nonprofits and how difficult it would be for them to compete in
this auction process?
Mr. Pritz. So one answer to that is if YMCA qualifies as a
community then they would get a preference.
Senator Klobuchar. But do they still have to pay that much
money?
Mr. Pritz. Yes, so the $185,000 is--well, there's two
answers to that question. One is the $185,000 is a cost-based
fee, and we've been public about our calculations for how much
it costs to receive a top-level domain. They're not to be
awarded lightly. You have to meet financial and technical
criteria and show you have the wherewithal to actually operate
a registry, which is a piece of Internet infrastructure.
But also, ICANN has a support program that the board just
recently approved, that for certain deserving candidates the
application fee will be lowered from $185,000 to $47,000. But
admittedly there's a limited amount of funding for this and
we're trying to generate more funding, and that's another
avenue.
Senator Klobuchar. So if you have these auctions, it could
go above $185,000 if different companies are vying for this
name?
Mr. Pritz. So----
Senator Klobuchar. And then what happens with that money if
you end up having a big surplus?
Mr. Pritz. So the answer to the first question is, yes.
There's a market theory that funds flow to the most efficient
use in the market and so the company that bids the highest in
the auction would pay a higher price. But we also recognize
that by encouraging the entities to negotiate it's more
economical for them to arrive at an accommodation than pay an
auction fee.
Second, ICANN's been very public about any fees received
from auction will be put into a separate fund and the whole
Internet community gets to discuss the use to which those funds
are put. So ICANN's a not-for-profit, right, so it's a zero-sum
game. So those funds might go to fund Internet security
projects or combat cybersquatting or other crime or fund other
needy applicants, something like that. Those are the things
that have been discussed.
Senator Klobuchar. Last question I have. I'm sure you're
aware there's been a lot of discussion over the past few months
related to potential conflict of interest at ICANN with the
departure of a former chair, not Ms. Dyson. What are you doing
to respond to those concerns?
Mr. Pritz. Well, first, again two things--and I usually
speak in threes. First, ICANN has a very robust conflicts
policy. I sit in board meetings. Board members that are
conflicted must make a statement of interest and they're often
excused from the room in the instances of many discussions.
There's a training class for all board members and officers to
go through regarding conflicts of interest. So if you were to
read the conflicts of interest policy ICANN has, you would find
it to be very robust.
Additionally, the ICANN board recently approved an
enhancement to that policy where any board member who votes on
or discusses a potential new gTLD application cannot be hired
by that gTLD for a period of 12 months after leaving the board.
There's also new rules around declaring interest and being
excused from conversations and votes.
So in my opinion we're already at a gold standard, but I
was recently hired by the board recognizing the concern over
that issue.
Senator Klobuchar. And----
Mr. Pritz. Just--I'm really sorry. I also want to say--I'll
talk in threes--that there's no evidence that the former
chairman had discussions about future employment before he left
ICANN. That's sort of the test, that he was exploring that
while he was undertaking this policy discussion.
Senator Klobuchar. OK. Well, I want to turn it over next to
Senator Boozman, and then I will go to maybe some follow up
with the rest of the witnesses. Thank you.
Senator Boozman. Thank you, Madam Chair. With your
permission, I would like to defer to Senator Ayotte.
Senator Klobuchar. OK. Senator Cantwell was actually next
and I was trying to defer to you as the Co-Chair.
But do you have a time conflict?
Senator Boozman. No, no. Go to her and then come back.
Senator Klobuchar. OK, all right. Then we'll go to Senator
Cantwell and Senator Ayotte.
Senator Boozman. I'm sorry. I was just doing time and time.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Madam Chair, and thank you for
holding this important hearing.
I guess my questions are a little bit broader than just the
subject at hand, although I certainly appreciate everyone's
testimony this morning and the policy issues that are at
discussion. But I have a broader question about authentication
and integrity, because that to me is the issue that we're
dealing with at the broadest level, and the new DNS security
system and the implementation of that security system seems to
me to be a pretty big priority if we want to continue to
protect and identify authentication in ways that will help the
Internet continue to be the robust vehicle that it is.
Yet some of our colleagues over on the--over on the--it's
not ``the other side''--maybe it is from the Commerce
perspective--on the Judiciary Committee side are looking at
Protect IP. So I wanted to ask, Mr. Jaffe, do you believe that
the objectives of Protect IP--or maybe even Ms. Dyson. The
problem is is that the objectives of Protect IP are counter to
the objectives of the DNS security system. And it seems to me
if we're always playing whack-a-mole at trying to find out
who's doing what, then if you have more domain names you're
going to be playing whack-a-mole even more greatly, and the
objective here should be enforcing security and implementation.
Is that right, Ms. Dyson? Do I have that right?
Ms. Dyson. Well, fundamentally, there's a bunch of issues
here. One is simply for any particular domain name can you find
the person or entity who has the economic interest in it and
controls it. If the records are not kept properly--and in many
cases they're not, and there's no reason to suspect they'd be
kept better and a lot of reasons to suspect they'd be kept
worse if the system got enlarged--you can't find that person,
whether it's a question of fraud and misrepresentation or IP
stuff or pedophiles or whatever.
Whatever your opinions on SOPA, these are just orthogonal
issues. The challenge with new domain names is there's probably
going to be even laxer oversight, because ICANN's resources are
already stretched. You've heard that. And in this case this, we
really are talking about a tax on the Internet, a tax to
support protections against a whole bunch of so-called
attractive nuisances that can be created at will.
We have some domain names because it's valuable to have a
registration system for the Internet. But creating a whole new
set of redundant names isn't useful and leads to people coming
in who are not in fact redundant, but are just stealing brand
value, trademarks, and all kinds of other value from the
rightful owners.
Mr. Jaffe. Senator Cantwell, if I could also interject.
Yesterday, as I mentioned, the chairman of the FTC said that
this program would be a disaster both for business and
consumers. That's a very much stronger statement than he
usually makes in these areas. One of the reasons that he was so
concerned is just because of the subject that we're talking
about, which is the whole question of authentication.
I'd like to put a chart up just to show you some of the
problems that this causes, because there are some technical
issues here that need to be understood, but once understood you
get the clear view as to why law enforcement groups are truly
deeply concerned.
The papers were handed to the staff earlier; if they could
provide them to the Senators so that they can actually see,
just in case. This is an eye chart and if you could put that
up. Yes.
What happens is there's something called the thicker WHOIS
program, and that is to let you know who is lying behind the IP
addresses. So somebody may be doing things that are causing
harm. This certainly happens to many of the companies that we
represent, and they spend millions of dollars now to fight this
problem.
But when they go to the thicker WHOIS they often find that
the names that are there don't lead you anywhere, and
therefore, you cannot really resolve the problem. What I'm
showing here is not just a picture of Mickey Mouse and Donald
Duck, but those are the actual names that as you dug into the
thicker WHOIS, you would find. We don't believe that Donald
Duck and Mickey Mouse are the ones who are causing the
cybercrimes, the cybersquatting, typo squatting, phishing.
So if you don't know that it's somebody other than Mickey
Mouse or Donald Duck, then you can't really solve this problem.
Despite the fact that ICANN claims that it is going to be
tightening up all of these restrictions, as I mentioned in my
testimony, of the 12 specific recommendations of the law
enforcement community that were given to them to make sure that
the registrars and registries were operating appropriately,
only three were being even considered and none of them have
been acted on.
This is a really serious issue that is going to multiply
enormously. You're talking about an exponential increase. You
have a terrible problem right now with 22 domains. There are
millions, hundreds of millions, of secondary domains. Once you
start going to 300 or 500--now we're hearing that it may go
much higher. I don't know whether it's going to be a thousand.
But whatever that number is, it is an extraordinary increase.
If they can't take care of it under the existing situation, why
would anybody be able to think that they would?
This is putting an enormous cost on the business community,
on the not-for-profit community, and at a terrible time in our
economy, where this money should be better used for jobs.
That's why we are saying that there should be a pause, that
there is not, there is not a consensus. They are supposed to
under the Affirmation of Commitments to have a consensus of
agreement. If so many people in the business community feel so
strongly, the not-for-profit community feel so strongly, if the
FTC and other law enforcement groups all feel so strongly,
where is this consensus? Who is it that's calling for this?
There is nothing sacrosanct about this January 12 date. We
should not leap out at this time in the economy's situation to
take this kind of experiment with no reason to believe--their
own economists say that the benefits are speculative. But I can
tell you from talking to hundreds of our members, hundreds of
our members, that they're saying that there's no value here for
them.
So there are billions of dollars that are going to be spent
and it's not going to be providing a use for the economy.
Senator Cantwell. Thank you, Mr. Jaffe. I know my time has
expired, Mr. Jaffe's time, on that question. But I hope that we
do make this issue of authentication and the DNS security the
number one priority here, because that is what's really, the
integrity of the Internet, we need to continue to protect.
So I do look at it in the lens that you just described.
So thank you, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Cantwell.
STATEMENT OF HON. KELLY AYOTTE,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Ayotte. Thank you, Madam Chair.
I want to follow up with what Senator Cantwell asked about,
because I think this is a real deep concern. Mr. Pritz, how do
you respond to Chairman Leibowitz's comments he made yesterday
that it would be a disaster for the business and consumer. From
my background as the Attorney General of our state, I know what
a challenge it is for law enforcement to investigate these
types of crimes. It really makes me concerned when I hear
things like 12 recommendations made by the law enforcement
community to address concerns related to the action you're
about to take and only 3 were even considered.
So can you please address these deep concerns that we all
have?
Mr. Pritz. Certainly, because we share the same concerns
and want to launch this program and create an Internet that's
safe, stable, and secure. So there's really several answers.
I'm going to just start at the last one. There are 12 law
enforcement recommendations that they developed in consultation
with ICANN-accredited registrars and right now ICANN is
renegotiating the contract it has with registrars to adopt as
many of those recommendations as possible.
In fact, since I'm in Washington, D.C., I'm going to leave
here and this afternoon the ICANN staff is meeting with
registrars, and have our third meeting to discuss not only the
12 law enforcement recommendations, but also recommendations
from ICANN's policymaking body for improving registrant
protections by changing the contract we have with registrars.
So the number of three is sort of incorrect. Our GNSO is
considering three of those recommendations, but in fact in a
face-to-face bilateral negotiation ICANN is working with
registrars to adopt as many as possible.
Senator Ayotte. One thing that leaps out at me is that we
are talking about a January rollout and you're negotiating
things that are incredibly important when we think about
protecting consumers from fraudulent actions. The Internet is a
wonderful tool, but also has been used by predators and other
bad actors with ill intent.
So when I hear ``negotiations ongoing'' for something
that's a January rollout, I am concerned why are we rushing
into this. So how do you respond to that? And then also I would
like to hear you respond to Chairman Leibowitz's comments.
Mr. Pritz. And I will. So the negotiations are targeted at
delivering a new registrar accreditation agreement by the
springtime. I forget when the ICANN meeting is, but I think
it's in March or April. So the timetable for delivering a set
of amendments for that is then.
I think the job of improving the safety and security of the
DNS, the domain name system, never stops. It's ongoing. Part of
what's in our testimony is that many new protections for
registrants and for Internet users are embedded in the new gTLD
process. So there's a series of trademark protection mechanisms
that have been developed by--the great thing about ICANN is if
you have a hard problem to solve you can get world-class
experts to sit around the table.
So for trademark protections, we sat with 18 well-
recognized IP attorneys and developed trademark protections. We
also developed a set of malicious conduct mitigation measures
that each new TLD will be required to adopt. How did we develop
them? We get Internet security experts from the anti-phishing
working group and other groups called the Registry Internet
Security Group, and FIRST is another one.
So we called experts together, and embedded in this process
are substantial protections for trademark holders and then
measures to mitigate malicious conduct. Some of those measures
are the requirement to adopt this DNSSEC that we talked about
earlier, stringent criminal background checks, checks to
determine if a new gTLD applicant has had a history with UDRP
where he's been taken to arbitration over domain name abuse.
There's an elective security program for institutions, such
as maybe a dot-bank that wants to provide higher security.
There's a strong incentive for registries to provide searchable
WHOIS and a requirement to provide a centralized zone access
and I say those two things together because that makes it
easier for law enforcement to search data bases and hook up
criminal activity.
So all these were meant to provide protections and provide
new tools for law enforcement. So that was a great big of work.
But I agree with you that the work is ongoing, and that's why
we've accelerated. We have these recommendations from law
enforcement and we're accelerating this negotiation with
registrars and want to bring to you and the rest of the
Internet community some results on it.
Senator Ayotte. Well, appreciate results on that, except it
seems to me that these are inherently very, very important
issues and it doesn't make sense to me that you'd have a
January 12 rollout with outstanding issues that are as
important as you describe with respect to the negotiations that
will impact important protections for consumers and the law
enforcement community.
I would just say it is very challenging for a member of law
enforcement to investigate these kinds of cases. As I hear your
testimony, you're not even sure how many applications you will
have at the end of the day when you open this up. So that is
really going to be a challenge when you go from 22 to, who
knows, a thousand. And it seems to me that that in and of
itself is going to be a huge challenge for law enforcement. It
seems to me that caution should be used to make sure that we
don't rush into this.
So I appreciate you all coming to testify today on this
very important issue.
Mr. Pritz. I didn't answer your last question.
Senator Ayotte. Well, my time is up.
Senator Klobuchar. If you want to, that's fine, if you want
to answer it.
Mr. Pritz. Sorry. So we take the comments of Mr. Leibowitz
very, very seriously. We've received--as we developed this
program, we received comments from representatives from other
governments along the same line, and have worked very closely
with governments to develop the protections that are here, and
intend to monitor.
There's an automatic break in the process. It's slowed down
after the first round so that we can measure the effectiveness
of the trademark protection mechanisms and the sorts of things
that Mr. Leibowitz was talking about. Particularly I know he's
talking about improving the accuracy of the WHOIS data, and
ICANN has a four-pronged approach to that.
So anyway, we take his comments very seriously. We've heard
them from others throughout the development of the program and
we pledged to him, and want to have further conversations with
him, but to everyone, to monitor this program as it goes to
make sure that improvement for law enforcement and for
everybody is a continual improvement process and not a one-step
process.
Senator Klobuchar. Thank you very much, Senator Ayotte.
I think you've heard today, Mr. Pritz, from--and I have
some additional questions--from someone, Senator Cantwell, who
spent her life working on protecting the Internet, and now you
have two prosecutors up here, who focused very much on consumer
issues and crimes. I think you've heard some of our concerns.
I know we don't have--Congress may not be able to stop
this, but I think that there are some concerns with this
process and what's happened here that are worth listening to.
I wanted to follow up, and I also realize that the three of
us also have had the experience--I can say I have--where people
try to register your own name, as elected officials. Right now,
I don't know how much it costs to get those. It costs us
something. This is everything to the left of dot-com. If we had
to start paying $185,000 and get in an auction, Senator Ayotte
and me, that would be a whole other problem.
So I think you're hearing some of the concerns that you are
going to hear from the public. One of these is this defensive
registration idea. Companies, universities, and nonprofit
organizations, as I've mentioned, have spent a lot of time and
money over the last decade on so-called defensive
registrations, registering their names in top-level domains
that they never have any intention of using, but because they
don't want someone who's committing fraud or someone who's
trying to use their name in any way to use it.
For example, Indiana University recently said they are
buying 11 names. These include hoosiers.xxx, Indiana
University, just to give you a few of them.
I'll start with you, Ms. Williams. Ms. Williams, have the
YMCA and other nonprofits felt the need to engage in defensive
registration?
Ms. Williams. Yes, Senator, we have. And the question is
can we really afford it? When you look at cost and capacity,
there is just not a connection in how we can defensively
maintain the value of our brand. Our brand is everything.
There's the issue of public confusion. In fact, one of our
large not-for-profits was recently involved in an issue where
another organization registered with their same name, received
an Internet domain name, and began raising funds under that
large not-for-profit's name. There was public confusion.
Imagine when this new gTLD program goes into effect, how
that could really impact us. So there is absolutely some
concern.
The YMCA, we did register ymca.xxx to protect ourselves.
But we can't afford to continue to keep trying to do this in
order to protect our brand. And when I mentioned capacity, when
you think that there are over 1.5 million nonprofits in the
United States alone and most of those nonprofits are very, very
small, do not have the expertise or the intellectual capacity
to even address an exponential growth in the Internet, it's
just incredible and, quite frankly, scary.
Senator Klobuchar. Mr. Jaffe, have your companies--I know
I've heard from a few, so I think they have. But have they felt
forced to make defensive registrations like Ms. Williams
mentioned in the nonprofit sector, like we have seen in the
government sector?
Mr. Jaffe. Absolutely. And this will, as I said before,
will be exponentially increased over time. It just never ends,
because we're now hearing that this may be a thousand names.
Every time there's a new top-level domain, it generates
thousands and thousands and thousands, and maybe even hundreds
of thousands of secondary domains. There's 22 top-level
domains. There are more than 100 million secondary domains. So
if you start to multiply this up, just start to imagine what
this means, what do you think this is going to mean for
consumers?
I would like to at least respond to something that Mr.
Pritz said. The whole effort in regard to these legal issues
has been going on for years. Chairman Leibowitz had asked for
better WHOIS data since 2003. The GAC proposals have been
pending for more than 2 years. Nothing has happened. Why do we
think that suddenly we are going to get all of these problems
resolved?
I'd like to put up, if I could, one more chart that just
shows you how defensive domains work.
Mr. Jaffe. I would put up the pictures. I'm sorry that I
don't have a picture of the Senators who are here, but you can
be assured that you also are honored by those who have----
Senator Klobuchar. I see you have more senior Senators up
there, yes. Senator Ayotte and I note that.
[Laughter.]
Mr. Jaffe. You are also honored by this same effort.
Senator Ayotte. I can assure you we've been subject to it.
Mr. Jaffe. There are people who are out there buying names
on the hope that you will be in campaigns or otherwise will
want to have the ability to buy your name back, just as
companies are going to have to buy their name back. That's what
we're talking about here. To protect themselves, they're going
to have to take the brands that they have spent billions of
dollars to develop and then, so that somebody else will not
take those from them, they're going to have to register them,
they're going to have to pursue across the whole of the
Internet, or they're going to have to buy a Top-Level Domain.
I have been told by a number of companies that they
absolutely do not want to do this, they see no value in it, but
that they may be forced to do it. And when we're talking about
billions of dollars here, when we're talking about companies
with 3,000 or more brands, even big companies will be facing
really large expenses.
So this is a very, very significant economic issue for this
country and for the world. And as you can see----
Senator Klobuchar. And that's FrankLautenberg.com waiting
to be adopted? They're just suggesting this could be bought by
anyone?
Mr. Jaffe. Yes. It exists, but they're offering it for sale
to anybody who wants it, and that doesn't have to be Frank
Lautenberg. That doesn't have to be Senator Klobuchar, or that
doesn't have to be Senator Ayotte.
Senator Klobuchar. I understand that. That didn't look like
Frank Lautenberg.
Mr. Jaffe. Whoever has it, if you want it back I'm sure
they'll be willing to sell it to you for a very high price.
Senator Klobuchar. Yes.
Mr. Pritz--do you have any other questions, Senator Ayotte?
Senator Ayotte. No, thank you.
Senator Klobuchar. Mr. Pritz, do you want to respond to
this cost of defensive registrations, what this could mean if
you start opening up the right side of the dot to even more
names, and the multiple names that you may have to buy to
defend yourself?
Mr. Pritz. Surely. It's a very, very important issue and
it's taken up a lot of time over the last several years.
There's--and we've undertaken economic studies and those
studies indicate and all the evidence indicates that there's
not going to be a dramatic increase in the need for defensive
registrations, and I'll try to explain why.
First--again, it's two-pronged. First, there's a set of
trademark protections that have been developed by IP experts,
all targeted at providing relief for people that have an
interest or a property right in a name, making it possible for
them to protect their name without a defensive registration. So
there is a notice to anybody who tries to register a registered
trademark. There is a rapid takedown system that's cheaper and
faster than the current UDRP system for taking down trademarks.
There's a post-delegation, it's called, post-delegation dispute
resolution process, where property owners can go directly after
registries, not after the registrants, if the registries are
actively involved in cybersquatting or some other crime.
And there's others. So there's a set of trademark
protections that, again the beauty of ICANN, developed by
experts, to target this problem.
The other part of it, though, really is the architecture of
the Internet. Where does this abuse take place? It takes place
in the very largest registries, because that's where the abuse
pays off. Typo squatting occurs because people type in--people
still type in addresses into their browser, and they type in
``ymcaboys.com'' or ``ymcacamp.com,'' and so those are names
registered by typo squatters. But that occurs only in common.
Historically, property owners, property rights owners, have
not registered those types of defensive registrations in
smaller new TLDs or new TLDs simply because it doesn't pay off.
Senator Klobuchar. OK. I'm just trying to picture this.
Maybe if you're a Hilton or Marriott or you're 3M and you get
this notice that someone's using your name-dot, you're going to
be able to respond. But I'm picturing--my fear on those domain
names, when we bought a bunch of them defensively, was that
somehow we'd miss them in the post office box. And I'm just
trying to picture small businesses or nonprofits that wouldn't
get this notice and someone just buys the name for $185,000.
Ms. Dyson.
Ms. Dyson. So I'd like to tell very briefly the story of
meetup.com. We have about 60 employees. We tried to register
meetup.xxx for precisely all these reasons. We were told that
``meetup'' was such an attractive name for dot-xxx that it was
on some kind of reserved list, so we can't even register it
defensively. We can wait for someone to buy it and then we can
file a trademark lawsuit. That to me is not a satisfactory
approach, and that's for the existing dot-xxx, not even for the
new ones.
Senator Klobuchar. All right. In June of 2010 three
economists from Berkeley, Stanford, and the private sector
submitted a study to ICANN--we've been talking about studies
here--that a slower rollout of Top-Level Domains would help
address concerns about this new application window. They said,
in their words: ``By proceeding with multiple rounds of
application, the biggest likely cost, consumer confusion, and
trademark protection can be evaluated in the earlier rounds to
make more accurate prediction about later rounds.''
I think Senator Ayotte was talking about waiting until some
of these, at least these law enforcement and other things,
resolve. But what about this idea of doing this in rounds or
trying as you've expanded? I think my staff told me in the year
2000 and the year 2004 to get to your total of 22--to seem to
go up to thousands of names before you have even these
agreements worked out--you can understand why you're hearing
concerns from these Senators.
Mr. Pritz, what is ICANN's response to the analysis from
2010?
Mr. Pritz. We fully commit to evaluating the effectiveness
of trademark protections after an initial round, and in fact
have committed to that with our governmental advisory
committee.
Senator Klobuchar. What would the initial round be when
you're talking about over a thousand now?
Mr. Pritz. No. So the initial round--so the new gTLD
introduction is limited by rounds. So we will have--and it's
also limited by demand. So an application window will open on
January 12 and it will close on March 12. During that time
period we will receive applications for which there is demand.
Then after that we'll process those applications, do
studies, and feed that back.
Senator Klobuchar. So you don't have a number limit on it?
Mr. Pritz. That's correct. So we did a round in 2000 and in
2004. The 2000 round was limited by number. We chose 7 out of
200 applications. The round in 2004 was limited by type. They
were limited to like a community type of TLD.
Senator Klobuchar. What's this limited by?
Mr. Pritz. In those two rounds, we found that the benefits
expected were not realized because those rounds were curtailed.
It also put ICANN in the position of being a decisionmaker,
making it sort of a beauty contest and ICANN deciding between
winners or losers.
So this time we want to allow all TLD applicants who apply
that meet very stringent criteria. So our limitation is a very
high bar. They have to meet stringent technical and financial
criteria to show, like I said before, the wherewithal to run a
registry. So it's a significant undertaking. And we've sought,
through this big fat applicant guidebook, to educate potential
applicants into all the requirements that they have to meet, in
addition to the new--in addition to the new protections.
Senator Klobuchar. Do you want to respond to this idea, Mr.
Jaffe, Ms. Dyson, Ms. Alexander, about the rounds?
Mr. Jaffe. I would just like to draw the Committee's
attention to a letter that was sent last night to the
Department of Commerce. It was from the renowned economist Dr.
Robert E. Hall, who's the Joint Professor of Economics at
Stanford University and Senior Fellow at Stanford's Hoover
Institution, and he was the 2010 President of the American
Economic Association. He did this in conjunction with Michael
A. Flynn, another expert economist.
This is what their conclusion was: ``An unlimited expansion
of gTLDs would not add anything material to product variety
facing Internet users. It would merely create a costly nuisance
for those users. ICANN is sponsoring a perversion of the
economic analysis that it commissioned by even suggesting that
this nuisance has net benefits for the Internet community.''
Doctors Hall and Flynn then go on to urge the Secretary of
Commerce, ``to take action to block the unlimited expansion of
gTLDs'' unless and until ICANN can demonstrate, ``that any such
expansion or a limited expansion on a case by case basis would
be in the public interest and that the benefits to any
expansion would exceed the clear costs that the expansion would
impose on the global multi- stakeholder community that ICANN
serves.''
[The material referred to follows:]
AFE Consulting
Oakland, CA, December 7, 2011
Hon. John Bryson,
Secretary,
U.S. Department of Commerce,
Washington, DC.
Dear Secretary Bryson:
AFE Consulting, at the request of the Association of National
Advertisers (ANA), is carrying out an economic analysis of ICANN's
announced intention to allow and encourage a virtually unlimited
expansion of the Domain Name System (DNS) by adding many hundreds of
new generic Top Level Domains (gTLDs) to the 22 already in existence
and to continue to expand the number of gTLDs by the thousands in later
years. The authors of this letter are professional economists leading
the AFE study. We have reached the conclusion that this dramatic
alteration in the landscape of the Internet would be contrary to the
interests of both consumers and businesses. Our brief biographies are
attached at the end of this letter.
ICANN's authority to consider the possible expansion of the number
of gTLDs dates back to the November 25, 1998 Joint Memorandum of
Understanding between the U.S. Department of Commerce and ICANN. We
believe it is critical to keep in mind this foundational document,
which, among other provisions, requires ICANN to:
Collaborate on the design, development and testing of a plan
for creating a process that will consider the possible
expansion of the number of gTLDs. The designed process should
consider and take into account . . . potential consumer
benefits/costs associated with establishing a competitive
environment for gTLD registries.\1\
---------------------------------------------------------------------------
\1\ Memorandum of Understanding Between the U.S. Department of
Commerce and Internet Corporation for Assigned Names and Numbers,
November 25, 1998.
In December 2008, as ICANN proceeded with its plans for the
introduction of new gTLDs, the U.S. Department of Commerce wrote to
---------------------------------------------------------------------------
ICANN's Chairman Peter Dengate Thrush:
[I]t is unclear that the threshold question of whether the
potential consumer benefits outweigh the potential costs has
been adequately addressed and determined. In that regard, we
would like to call to your attention a decision of the ICANN
Board on October 18, 2006, that called for an economic study to
address [this and related questions] . . . ICANN needs to
complete this economic study and the results should be
considered by the community before new gTLDs are introduced.\2\
---------------------------------------------------------------------------
\2\ Letter to Peter Dengate-Thrush from Meredith A. Baker, December
18, 2008.
Following its receipt of that December 2008 letter, ICANN
---------------------------------------------------------------------------
acknowledged that:
[S]everal members of the ICANN community requested that ICANN
commission economic studies that would specifically address the
possible economic consequences of new gTLDs. . .Accordingly,
ICANN retained the services of economist Dennis Carlton, who
recently had served as the chief economist to the United States
Department of Justice Antitrust Division.\3\
---------------------------------------------------------------------------
\3\ ICANN, Rationale for Board Decision on Economic Studies
Associated with the New gTLD Program, March 21, 2011, at page 3.
Thereafter, in March 2009, Carlton issued a report in which he
---------------------------------------------------------------------------
concluded, generally, that:
ICANN's proposed framework for introducing new TLDs is likely
to improve consumer welfare by facilitating entry and creating
new competition to the major gTLDs such as .com, .net, and
.org. Like other actions that remove artificial restrictions on
entry, the likely effect of ICANN's proposal is to increase
output, lower price and increase innovation. This conclusion is
based on the fundamental principles that competition promotes
consumer welfare and restrictions on entry impede
competition.\4\
---------------------------------------------------------------------------
\4\ Preliminary Report of Dennis Carlton Regarding Impact of New
gTLDs on Consumer Welfare, March 2009, at pages 2-3, available at
http://www.icann.org/en/topics/new-gtlds/prelim-report-consumer-
welfare-04mar09-en.pdf.
But in his series of reports, Carlton never squarely addressed or
analyzed whether or not the potential future benefits of ICANN's gTLD
expansion would outweigh the future costs.
To remedy this shortcoming (of which many took notice), ICANN
turned to Michael Katz \5\ and Gregory Rosston for additional economic
analyses. They submitted a series of three reports in June 2010,
December 2010 and February 2011. In their third report--the final
economic analysis of the new gTLDs received by ICANN--Katz and Rosston
conceded:
---------------------------------------------------------------------------
\5\ Katz had also served as the chief economist of the Justice
Department's Antitrust Division.
[O]ur report does not conclude that benefits will exceed costs
for new gTLDs as a whole. . . . The purpose of [our report] is
to lay out a structure within which to think about the benefits
and costs of new gTLDs.\6\
---------------------------------------------------------------------------
\6\ Michael L. Katz, Gregory L. Rosston and Theresa Sullivan, Reply
to Comments on An Economic Framework for the Analysis of the Expansion
of Generic Top-Level Domain Names, February 21, 2011, at page 3
(emphasis added), available at http://www.icann.org/en/topics/new-
gtlds/analysis-response-phase-ii-report-21feb11-en.pdf.
---------------------------------------------------------------------------
They added:
[Our report] summarized prior studies on issues relevant to the
introduction of new gTLDs. The report identified shortcomings
of specific studies and concluded that existing studies were
incomplete. The central finding was that additional information
should be collected.\7\
---------------------------------------------------------------------------
\7\ Id. at page 4 (emphasis added).
At the end of this series of economic reports that ICANN itself had
---------------------------------------------------------------------------
commissioned, ICANN reported:
Ultimately, ICANN obtained reports from several economists,
including some of the world's leading economists who specialize
in competition issues. . .[T]he studies made clear that the
economists did not anticipate that the costs that might be
associated with new gTLDs would outweigh the overall benefits
of their introduction, and determined that it was too difficult
to predict. . .As a result, ICANN's Board has concluded that
there is no economic basis that would justify stopping the New
gTLD Program from proceeding and no further economic analysis
will prove to be any more informative in that regard than those
that have already been conducted.\8\
---------------------------------------------------------------------------
\8\ ICANN Rationale at page 1.
The Carlton and Katz-Rosston reports reflect almost no actual
investigation of the practical effects of the huge expansion of gTLDs
that ICANN plans. It is an axiom of competition analysis that any such
analysis must rest on a factual background. Moreover, these reports do
nothing to demonstrate that general principles that apply in many
markets actually apply to the unique nature of gTLDs and the scale of
ICANN's planned increase in their number. A new gTLD is not a product
in the sense that a new electric car is a product.
Domain names like NYTimes.com are essentially trademarks. They are
small fragments of text that consumers associate with the products and
services of businesses and organizations on the Internet. By
convention, Internet domain names (``trademarks'') have two parts
separated by a period. On the left is a brief version of a product or
business name and on the right is the gTLD (or non-generic TLDs such as
country codes that are not at issue today).
From the perspective of the consumer, a second-level domain, such
as NYTimes, connected to a given gTLD, such as .com, is essentially the
same as NYTimes.info or NYTimes.biz. Competition based on
differentiation of only the gTLD is expressly prohibited by trademark
law and by the rules of ICANN, which has procedures that can lead to
cancellation of such registrations by a non-owner of the left side of a
domain name, but only after the owner successfully brings a legal
action against the registrant of the infringing domain name. This key,
undisputed principle of the Internet--essential to its usefulness to
Internet users--refutes the simplistic Carlton claim that adding gTLDs,
ipso facto, increases competition, improves product variety and
provides more choice to consumers.
As the ICANN economists noted, the gTLDs added by ICANN in the last
decade have attracted relatively few registrations, and the
overwhelming majority of these merely duplicate second-level domain
names already registered under .com. They add little or nothing to the
benefits that brand owners and consumer achieve from the Internet.
Today, many Internet users find desired websites by running searches on
Bing, Google, or other search engines. They don't type in NYTimes.com,
they just type in ``NYTimes'', or ``New York Times'' or ``NY times'' or
even just ``times'' (try it--on Google, NYTimes.com is the second
search result for a search on ``times''). It adds absolutely nothing if
the search engine then offers them a choice between NYTimes.com and
NYTimes.biz.
An analogy to printed brand names may be useful in explaining why
the extreme proliferation of gTLDs is contrary to the interests of
Internet users. Under existing trademark law, a registration of a brand
name, say ``Tide'', also protects the name in other type fonts, such as
``Tide'' and ``Tide'' and ``TIDE'' and ``Tide''. The differences in
type fonts are analogous to the gTLD name after the dot in a domain
name. They are differentiating markers that do not alter the sense of
the brand name and mean almost nothing to the consumer.
The addition of gTLDs is as if a company other than Procter &
Gamble could register ``Tide'' as a trademark and use it until Procter
& Gamble discovered the misuse and filed a legal proceeding against it.
Under ICANN's plan to expand the number of gTLDs, Procter & Gamble
would either need to preempt such misuse by paying to register ``Tide''
defensively under these new gTLDs, or it could elect to spend the time
and resources needed to detect such registrations after the fact and
then incur the expense of dealing with them individually as they are
discovered. And even this assumes that it is possible to determine
ultimately who the registrant is, something that is not always possible
with the Who-Is databases available today.
Of course, it is true, as ICANN has said, that both trademark law
and ICANN's procedures for dealing with cybersquatting would be
available to domain-name registrants. But the proliferation of gTLDs
would raise the monitoring costs of domain-name owners. ICANN has
acknowledged that such proliferation would raise costs, but
nevertheless maintains--without any quantification of either costs or
user benefits--that the benefits would exceed these costs.
In fact, the benefits, as we have demonstrated above, are
negligible. The costs are not. Of course, the proliferation of gTLDs
will create profit opportunities for companies that offer domain name
registration and consulting services as they process defensive
registrations under the additional gTLDs. The revenue these companies
will derive from either defensive or infringing domain registrations--
and the motivation behind these registrations would appear to be a
matter of indifference to such companies--is a cost to legitimate
domain-name owners.
Our analysis to date shows that an unlimited expansion of gTLDs
would not add anything material to the product variety facing Internet
users. It would merely create a costly nuisance for those users. ICANN
is sponsoring a perversion of the economic analyses that it
commissioned by even suggesting that this nuisance has net benefits for
the Internet community. We therefore urge you to take action to block
the unlimited expansion of gTLDs unless it is satisfactorily and
transparently demonstrated that any such expansion--or a limited
expansion on a case-by-case basis--would be in the public interest and
that the benefits to any expansion would exceed the clear costs that
the expansion would impose on the global multi-stakeholder community
that ICANN serves.
Respectfully submitted,
Robert E. Hall
Michael A. Flynn
cc: Lawrence E. Strickling, Assistant Secretary for Communications
and Information and Administrator, National Telecommunications and
Information Administration, U.S. Department of Commerce
Fiona Alexander, Associate Administrator, National
Telecommunications and Information Administration, U.S. Department of
Commerce
Vernita Harris, Deputy Associate Administrator of the Office of
International Affairs, National Telecommunications and Information
Administration, U.S. Department of Commerce
Suzanne Murray Radell, Senior Policy Advisor, National
Telecommunications and Information Administration, U.S. Department of
Commerce
Elizabeth Bacon, Telecommunications Policy Specialist, National
Telecommunications and Information Administration, U.S. Department of
Commerce
Cameron F. Kerry, General Counsel, U.S. Department of Commerce
John D. Rockefeller IV, Chairman, Committee on Commerce, Science
and Transportation, U.S. Senate
Kay Bailey Hutchison, Ranking Member, Committee on Commerce,
Science and Transportation, U.S. Senate
Amy Klobuchar, Chair, Subcommittee on Competitiveness, Innovation
and Export Promotion, Committee on Commerce, Science and
Transportation, U.S. Senate
Daniel K. Inouye, Chairman, Committee on Appropriations, U.S.
Senate
Thad Cochran, Ranking Member, Committee on Appropriations, U.S.
Senate
Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate
Charles E. Grassley, Ranking Member, Committee on the Judiciary,
U.S. Senate
Barbara Mikulski, Chair, Subcommittee on Commerce, Justice, Science
and Related Agencies, Committee on Appropriations, U.S. Senate
Al Franken, Chairman, Subcommittee on Privacy, Technology and the
Law, Committee on the Judiciary, U.S. Senate
Tom Coburn, Ranking Member, Subcommittee on Privacy, Technology and
the Law, Committee on the Judiciary, U.S. Senate
Ron Wyden, Chairman, Subcommittee on International Trade, Customs,
and Global Competitiveness, Committee on Finance, U.S. Senate
Harold Rogers, Chairman, Committee on Appropriations, U.S. House of
Representatives
Fred Upton, Chairman, Committee on Energy and Commerce, U.S. House
of Representatives
Henry A. Waxman, Ranking Member, Committee on Energy and Commerce,
U.S. House of Representatives
Greg Walden, Chairman, Subcommittee on Communications and
Technology, and Technology, Committee on Energy and Commerce, U.S.
House of Representatives
Anna Eshoo, Ranking Member, Subcommittee on Communications and
Technology, Committee on Energy and Commerce, U.S. House of
Representatives
Lamar Smith, Chairman, Committee on the Judiciary, U.S. House of
Representatives
Norm Dicks, Ranking Member, Committee on Appropriations, U.S. House
of Representatives
John Conyers, Ranking Member, Committee on the Judiciary, U.S.
House of Representatives
Bob Goodlatte, Chairman, Subcommittee on Intellectual Property,
Competition and the Internet, Committee on the Judiciary, U.S. House of
Representatives
Frank Wolf, Chairman, Subcommittee on Commerce, Justice, Science
and Related Agencies, Committee on Appropriations, U.S. House of
Representatives
Mel Watt, Ranking Member, Subcommittee on Intellectual Property,
Competition and the Internet, Committee on the Judiciary, U.S. House of
Representatives
Chaka Fattah, Ranking Member, Subcommittee on Commerce, Justice,
Science and Related Agencies, Committee on Appropriations, U.S. House
of Representatives
Robert E. Hall
Robert E. Hall is the Robert and Carole McNeil Joint Professor of
Economics at Stanford University and Senior Fellow at Stanford's Hoover
Institution. He served as President of the American Economic
Association for the year 2010, served earlier as the Association's Vice
President and Ely Lecturer, and is now a Distinguished Fellow of the
Association. He is an elected member of the National Academy of
Sciences and Fellow of the American Academy of Arts and Sciences, the
Society of Labor Economists, and the Econometric Society, the
professional organization of economists specializing in measurement
issues. He is Director of the Research Program on Economic Fluctuations
and Growth of the National Bureau of Economic Research. He was a member
of the National Presidential Advisory Committee on Productivity. For
further information about his academic activities, see Stanford.edu/
rehall . He received his Ph.D. in economics from MIT and his BA from
the University of California, Berkeley.
Professor Hall is co-author of the college textbook Economics:
Principles and Applications, now in its fifth edition, and author or
co-author of numerous articles in the American Economic Review, the
Journal of Political Economy, and other academic journals.
Professor Hall has advised a number of government agencies on
national economic policy, including the Treasury Department, the
Federal Reserve Board, and the Justice Department, and has testified on
numerous occasions before congressional committees.
Michael A. Flynn
Mr. Flynn is a consulting and testifying expert economist,
specializing in antitrust, economic damages, intellectual property and
other complex business litigation and consulting engagements. He has
extensive case experience in a broad range of industries, markets and
products. Mr. Flynn studied in the PhD Program in Economics of the
Massachusetts Institute of Technology, Cambridge, Massachusetts, from
1971 to 1974, where he was a National Science Foundation Fellow. He
completed his general and field examinations for the PhD degree in
1974. Mr. Flynn was awarded his AB degree from the University of
California, Berkeley, where he was the 1971 recipient of the Department
of Economics Citation as the Outstanding Graduating Senior.
Mr. Jaffe. I'd like to add just one point. It seems to me
incredible that they are suggesting that the failure of their
earlier proposals where they did a beauty contest, where they
tried to select what they thought were going to be the most
economically viable programs, and that they failed, then argues
for us blowing open the doors, while we still do not have the
protections that we need to fight against some of these
cybercrimes, and say that this will then be looked at after we
find whatever damage has been caused.
Senator Klobuchar. Ms. Alexander, can the Secretary of
Commerce stop ICANN from doing this?
Ms. Alexander. Thank you very much.
Senator Klobuchar. That's what this quote was.
Ms. Alexander. Thank you very much, Senator. I haven't seen
the letter if it arrived last night.
I think the role of the Department of Commerce is not to
substitute our judgment for ICANN's. We've tried to very
actively participate in the process. I think it's important to
understand, though, too, while the application window starts in
January and closes in April, then there's going to be a
processing of the applications. We've read the applicant
guidebook and we've mapped out eight or nine different
scenarios of the paths an application could take.
An application with no problems and no objections will
still take 9 months to process. So the earliest any new TLD
will actually be operational on the root will be January of
2013.
Senator Klobuchar. Yes, but you're having people put in
$185,000 and at least spend all this money on applications. Are
you implying like we'd stop in the middle, that you'd stop in
the middle?
Ms. Williams. I think there's going to be--there's going to
be a natural evolutionary, slow introduction of them anyway.
And while ICANN has committed to do a review of their program
with the GAC, they're also required under agreement with the
Department of Commerce to do a review of the entire program a
year after the first TLD's in the root. So there will be this
process where we can have checks and balances to make sure.
We obviously take very seriously the concerns expressed by
Mr. Jaffe and others.
Senator Klobuchar. Also, the other thing we've heard is the
FTC Chairman and others as well. So I'm just trying to figure
out if this gets started, I'm not sure you're going to be able
to stop it in the middle. Maybe you can.
Ms. Williams. Mr. Leibowitz's comments yesterday are very
consistent with the comments we've been raising inside the GAC.
In fact, Mr. Leibowitz's staff is very much involved with us in
the process. That's in fact why many of the changes were made
to the ICANN program.
I think what we're looking at really is effective
implementation and monitoring of this effort, and we think it's
wholly appropriate for Mr. Leibowitz going forward to make sure
that ICANN lives up to these things to protect consumers. For
our part, that's what we'll be doing, working with consumers
and law enforcement to make that happen.
Senator Klobuchar. My original question, though, was about
this, this way of rolling it out slowly. Ms. Dyson, did you
want to answer that?
Ms. Dyson. Sure. As the founding chairman of this
organization, I'm extremely disappointed in its inability to do
what we set out to do, which was to have a clean and open and
transparent market for a limited, valid set of domain names.
The slow-rolling expansion, as Mr. Jaffe just said, showed it
wasn't working, and I don't think it's going to work better
whether we do it fast or slow.
The problem is, you've heard Mr. Pritz describe all these
elegant processes and all these policies, but they haven't
resulted in a clean and open market and I don't see why
anything different is going to happen if we have more such
TLDs.
And I want to address one other issue, which is the talk
about innovation, that we need more domain names to innovate.
I'm in the venture capital community. There's huge amounts of
innovation. There are new name spaces. Twitter.com has a new
name space. Federal Express has a name space of packages IDs.
Amazon has a name space for books. You don't need to pervert
the domain name system, which is an artificially scarce
resource controlled by ICANN, in order to innovate elsewhere.
People like Twitter and Amazon earn those rights through value
creation. This is what I like to see: real innovation, where
you don't buy a name for $200,000 and then spend a few millions
defending it, where you actually create something new. And for
that you don't need a new TLD.
Senator Klobuchar. Mr. Pritz, obviously a lot of people,
we're on the Commerce Committee, we like innovation. But I'm
just trying to figure out. Clearly, there are many that are
concerned in the nonprofit community about the cost of this, as
Ms. Williams has articulated. And we've also heard from
businesses that are concerned. Who's really pushing for this?
Is there division in the nonprofit community? Is there division
in the business community? Is it people who are focused on a
free and open Internet, which we all are up here?
I just want to--I want to understand the motivation. Who
are the groups pushing for this?
Mr. Pritz. A point I wanted to make at the end and I missed
making earlier is, in our testimony when we talk about a
consensus-based process and that there's a consensus for
launching this program in this manner, those consensus opinions
are hard-fought and hard-won. ICANN is a very noisy environment
and it's all those groups you mentioned--IT attorneys,
corporations, not-for-profits, noncommercials----
Senator Klobuchar. They have said they want to expand to
over a thousand? I'm just trying to understand how we got where
we are, because obviously Congress, for a change, didn't get us
exactly here. And I want to know how we got where we are and
who's been pushing it, because it didn't come through the
political process so I'm somewhat naive about how you got where
you are.
Mr. Pritz. So it came through the ICANN political process.
Senator Klobuchar. Yes.
Mr. Pritz. But that policymaking body, it's a bottom-up
policymaking process. That policymaking body has
representatives that are appointed by all those stakeholder
groups or constituency groups. I could list them: IP, business,
noncommercial, not-for-profit, Internet service providers,
registries and registrars. Each one of those stakeholder groups
appoint representatives to those policymaking bodies, where in
this particular instance they undertook this formal bylaw-
regulated policymaking process, and over a period of 19 months
developed, ironically, 19 policy recommendations.
The most highly debated one was the answer to the first
question: Should there be new TLDs and, if so, how should they
be restricted? What you see in front of you is the opinion to
restrict them by rounds, set a high bar, make sure they have
the wherewithal. Those policymakers have discussions at ICANN
meetings and in teleconferences that occur once a month, and
then they go back to their constituency groups and meet with
them and bring back opinions.
You know, many of the corporations that we're talking about
today, they're also represented in those policymaking bodies
and took part in this.
Senator Klobuchar. And how about the non-profits and groups
that are very focused on a free and open Internet?
Mr. Pritz. The not-for-profit constituency group that we're
really pleased to have and have some of the most dynamic people
in ICANN is new, but the noncommercial constituency is very
much for an open Internet and for the introduction of new
gTLDs. In fact, the sole dissenting voice in the final
consensus opinion was from the noncommercials that said it's
not open enough, we're being too restrictive with our
limitations and protection of rights of others.
So really it was a broad-based, hard-fought battle, if you
can imagine, by a very noisy group of stakeholders that are--
anybody can come to the microphone at an ICANN meeting and talk
directly to the Chair, and the Chair sits there and responds in
a dignified way.
Senator Klobuchar. I think sometimes what happens, just
from judging what happens around here, everyone works on it in
a room, people do come, and then all of a sudden they get the
final product and then everyone steps back and looks at it a
little bit. That's probably what you're hearing today from the
Senators up here, who have been really exposed to this outcome
for the first time, and what you'll probably hear in the weeks
to come from some of the groups, is my prediction, and the
public, and I think there's going to be an additional hearing
as well.
So I just hope, given that I think there's issues about
what the Congress or anyone could do about your group, which
has been set up to do this to begin with, but I'm hopeful that
you will listen to these concerns as we move forward. Will you?
Will you listen to the concerns as we go forward?
Mr. Pritz. I certainly will. And I want to tell you how
passionate everyone is at ICANN, and when I talk about ICANN
it's the big ICANN with all its stakeholders, are concerned
about this issue and have worked very hard on it.
Senator Klobuchar. OK.
Ms. Williams.
Ms. Williams. Senator, I just wanted to point out that, to
ICANN's credit, they did recognize that the not-for-profit
arena's voice had not been heard. But we weren't officially
recognized until June of this year. June of this year, the
train had already left the station, and there are several
iterations of the applicant guide and we weren't allowed to be
able to contribute to having the not-for-profit world
recognized, the issues around cost, the issues around defensive
registrations.
In fact, if you take a look at what ICANN has put forward
in terms of being able to protect one's brand, there are
still--it's still fuzzy. There are still some incredible gaps.
There are still opportunities for cybersquatters to come in
that have the funds to be able to take the venerable names of
not-for-profits, and we will be stuck.
For example, if--there is a rapid takedown process that
ICANN has discussed. If someone comes in and takes a dot-ymca
something, that can be taken down and then it sits dormant. But
then it goes back out into the public for purchase again by
another cybersquatter. So it doesn't even allow nonprofits to
reserve their name and not have someone come in and take it.
I can't tell you what the specific answer is, but there has
to be something done on behalf of our sector to protect us. We
do not have the funds to be able to do this.
Senator Klobuchar. OK. I'm going to--OK, the last two
comments here briefly and then we're going to conclude.
Ms. Dyson. Just finally, in all this process the end-users,
the billions of people, not the thousands and millions of
companies, but the billions of end-users who stand to gain
nothing from being confused, haven't been heard.
Senator Klobuchar. Thank you. I think that's the beginning
of this process.
Mr. Pritz. Right.
Senator Klobuchar. All right.
Mr. Pritz. What is required of ICANN under its affirmation
of commitments is a consensus. What you're hearing here is that
a very, very broad representation of the business community and
the international business community is concerned. You've just
heard that the not-for-profits are concerned. They have stated
that they have talked to all sorts of groups. I'd just like to
quote one more thing into the record to show that this is--and
it is short, Senator, I understand the time circumstance--but
to show that there is is not the consensus, there is no
consensus behind this proposal, which is a radical proposal.
This is from the IRT, which deals with the trademark
issues, and they were asked to look into this issue, which was
a good thing. But they wanted to make very clear with the
report: ``Was it because we support the concept of the
expansion of the gTLD space unreservedly? Hardly. The views of
the IRT reflect the views of business and trademark interests
in general. A sizable number''--let me emphasize that--``A
sizable number of our team would have preferred status quo,
with no new gTLDs, until better rights protection mechanisms
are in place for the existing gTLDs. Others favored the
measured''--what you were talking about--``measured
introduction of sponsored or community-based gTLDs.''
And then they said: ``Some support the current expansion,
seeing the advantages for commerce and the consumer for open
competition and innovation.''
That is not consensus. ICANN then decides among all these
different groups who have different views who wins, and guess
who always wins? It is always the group that wants expansion.
That is what drives the whole system. That's what the
registrars and registries get almost all of their money from.
That's where almost all the money for ICANN comes from.
So we think there's a very strong bias to always expand and
always say the consensus is here. We don't see any consensus of
the community.
Thank you very much.
Senator Klobuchar. All right. Well, this has been an
incredibly good discussion. I want to thank you all for being
here. I have to say, I raised this issue this morning with my
attendees at my Minnesota breakfast that we have every
Thursday. I thought I'd get something of a yawn, but actually
some of them showed up at the hearing, and then also a number
of them came up to me and asked questions, making me think that
the public actually would be interested in this issue, and I
think it's something that they understand.
We all know that the Internet is one of the great American
success stories. Its beginnings can be traced to a program at
the U.S. Department of Defense. In only a few short decades the
network of networks has expanded in leaps and bounds, reaching
people around the globe. The Internet has transformed not only
how we communicate with friends and family, but also the way
companies do business, how consumers buy goods and services,
how we educate our children. It's a powerful engine for
economic growth and a great democratic tool that citizens
everywhere are using to empower their communities.
And I believe the job of ICANN and the job of the
administration, the job of this Congress, is to make sure that
we protect that Internet so it can be used by all.
So I want to thank you so much. We look forward to working
with you. We may have some follow up questions in writing to
follow up on some of the answers that we got today, so we will
leave the record open for a week. Thank you.
This hearing is adjourned.
[Whereupon, at 12:10 p.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. Maria Cantwell to
Fiona Alexander
Question 1. Ms. Alexander, one of the purposes for DNSSEC is to
ensure that the recipient can validate that the data from any domain
name comes from the owner of that name and that it arrived at its
destination unchanged from end-to-end. The recipient should be assured
he or she is going to Internet site they are seeking to go to and not
being re-directed to another site.
There is legislation reported out of the Judiciary Committee called
the PROTECT IP Act that requires the use of filtering to re-direct end
users who want to reach blacklisted Internet sites that are ``dedicated
to infringing activity'' to a site that includes a statement by
Department of Justice that the site was determined to be dedicated to
infringing activity plus pointers to some to be determined information
and resources.
Does the Administration have a position on whether it believes that
the re-direction required under the PROTECT IP Act as reported by the
Senate Judiciary Committee is incompatible with how DNS SEC is
currently designed to authenticate domain names?
Answer. The Administration believes that online piracy by foreign
websites is a serious problem that requires a serious legislative
response, but will not support legislation that reduces freedom of
expression, increases cybersecurity risk, or undermines the dynamic,
innovative global Internet. Legislation must avoid creating new
cybersecurity risks or disrupting the underlying architecture of the
Internet. In addition, proposed laws must not tamper with the technical
architecture of the Internet through manipulation of the Domain Name
System (DNS), a foundation of Internet security. The Administration's
analysis of the DNS filtering provisions in some proposed legislation
suggests that they pose a real risk to cybersecurity and yet leave
contraband goods and services accessible online. Legislation must avoid
driving users to dangerous, unreliable DNS servers and puts next-
generation security policies, such as the deployment of DNSSEC, at
risk.
Question 2. Given that many of the expected hundred of new domains
created will be owned and operated by non-domestic entities, does the
Administration believe that PROTECT IP Act as reported by the Senate
Judiciary Committee will be effective in stopping non-domestic Internet
sites dedicated to infringing activities?
Answer. Please see response to Question 1.
Question 3. Does the Administration have a position on whether it
believes that PROTECT IP as reported by the Senate Judiciary Committee
will strengthen, weaken, or have no change on efforts to make the DNS
more secure for consumers and business?
Answer. Please see response to Question 1.
Question 4. What is the status of DNS SEC implementation for the
Federal government?
Answer. The Department of Commerce's long-running effort to support
the deployment of DNSSEC has included NTIA's work with ICANN and
VeriSign in signing the authoritative root zone file which has
facilitated broader DNSSEC deployment. The Federal Information Security
Management Act (FISMA) guidelines require all Federal agencies to
deploy DNSSEC. The Department of Commerce's National Institute of
Standards and Technology (NIST) and the Department of Homeland Security
(DHS) regularly measure DNSSEC deployment within the Executive Branch
of the Federal government and their compliance with FISMA. According to
their data, 35 agencies have fully implemented DNSSEC and 23 agencies
have partially implemented. Fifty-one agencies are not yet compliant.
The Department is currently 78 percent compliant with FISMA
requirements and is working towards full compliance.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Fiona Alexander
United Nations Model
Question 1. There has been a growing contingency of other countries
critical of the ICANN multi-stakeholder model and about the U.S.'
involvement and influence with ICANN. Some governments, not necessarily
friendly to the U.S., are seeking to increase their power over the
Internet and its governance.
Russia and China (with Tajikistan and Uzbekistan) have proposed to
the United Nations an Internet ``Code of Conduct,'' to which a senior
State Department official stated ``they seek to justify the
establishment of sovereign government control over Internet resources
and over freedom of expression in order to maintain the security of
their state.'' \1\ Even Russian Prime Minister Vladimir Putin remarked
recently his desire of ``establishing international control over the
Internet using the monitoring and supervisory capabilities of the
International Telecommunication Union (ITU).'' \2\
---------------------------------------------------------------------------
\1\ http://www.huffingtonpost.com/2011/09/27/russia-china-internet-
control_n_984223.html.
\2\ http://premier.gov.ru/eng/events/news/15601/.
---------------------------------------------------------------------------
The other proposal by India, Brazil, and South Africa calls for the
creation of a new body within the United Nations to oversee Internet
policy. As a result, ICANN as well as the Internet Governance Forum
(IGF) could be significantly marginalized or hijacked by this new UN
entity.
These proposals seem to be in direct conflict with our Nation's
effort to privatize the Internet through transferring the authority of
the DNS to the private sector and for the Internet governance model to
be private-sector led.
If the U.S. Government followed the advice to unilaterally delay
the gTLD expansion, what do you believe the impact would be globally
and do you believe this would fan the flames of anti-U.S. government
sentiment with respect to Internet governance? Could it give more
momentum to other governments' calls to have the United Nations assert
oversight over ICANN or replace it altogether?
Answer. NTIA recognizes that the new gTLD program is the product of
a six-year, international multistakeholder process and has no intention
of interfering with the decisions and compromises reached during that
process. Doing so would provide ammunition to those governments seeking
to exert top-down, government-led control over the Internet, which NTIA
believes is inimical to the future growth of the Internet.
Question 2. If the U.N. did take control or governments had greater
involvement, what impact would that have on American businesses and
citizens that utilize the Internet? What impact could it have on
Freedom of Speech?
Answer. It is NTIA's view that the Internet we enjoy today--a major
engine of economic growth and innovation--did not develop by
happenstance. It emerged as the result of the hard work of
multistakeholder organizations such as the Internet Society, the
Internet Engineering Task Force, and the World Wide Web Consortium. The
United States is opposed to establishing a governance structure for the
Internet that would be managed and controlled by nation-states. Such a
structure could lead to the imposition of heavy-handed and economically
misguided regulation and the loss of flexibility the current system
allows today, all of which would jeopardize the growth, innovation and
freedom of expression on the Internet we have enjoyed these past years.
Growth of the Internet and Expansion of the Domain Name System
Question 3. The Internet has been so amazingly beneficial to small
businesses because it allows them to globally expand their local
markets and enables them to compete with Fortune 100 companies because
the size of the computer screen is the same for a small business in
Bangor as it is for a multi-national corporation like Wall-mart. Small
businesses are the anchor to not only Maine's economy but to our
Nation's and the Internet has been invaluable to them.
Supporters of the expansion have stated it will bring new
competition and choice to the Internet space and allow the Internet to
continue to grow in the number of websites, content, applications, and
online services. It also presents businesses new models to harness the
boundless benefits of the Internet.
There have already been expansions to top level domains in the past
to accommodate for the growth of the Internet, with the intro of gTLDs
like .biz, .info, .museum, .mobi, etc.
If the Internet is going to continue to grow, shouldn't the domain
name system?
Answer. The goal to establish new gTLDs beyond the original seven
(.com, .edu, .gov, .int, .mil, .net, and .org) began over a decade ago
when ICANN was charged in 1998 by the Department of Commerce with
promoting competition in the registration of domain names. The current
round of expansion of the gTLD space is a continuation of that effort.
White Paper
Question 4. In the ``White Paper,'' which was released in 1998 and
led to the formation of ICANN is competition, has as one of its core
principles is competition--that competition and consumer choice should
drive the management of the Internet because they will lower costs,
promote innovation, encourage diversity, and enhance user choice and
satisfaction.
Comments in the White Paper \3\ on the issue of new generic top
level domains showed ``very strong support for limiting government
involvement during the transition period on the matter of adding new
gTLDs. Specifically, most commenters--both U.S. and non-U.S.--suggested
that it would be more appropriate for the new, globally representative,
corporation to decide these issues once it is up and running.'' Also,
commenters noted that ``there are no artificial or arbitrary limits in
other media on the number of places in which trademark holders must
defend against dilution.''
---------------------------------------------------------------------------
\3\ http://www.ntia.doc.gov/federal-register-notice/1998/statement-
policy-management-internet-names-and-addresses.
---------------------------------------------------------------------------
Isn't the expansion of gTLD a form of competition, where .hotels or
.cars could compete against .com or .biz? If not, why?
Answer. As NTIA noted in our testimony, the development and
deployment of the new gTLD program is consistent with ICANN's agreement
to promote competition in the gTLD environment as outlined in the
Affirmation of Commitments. In addition, the current round of expansion
of the gTLD space is expected to provide a platform for city,
geographic, and internationalized domain names, among other things. We
expect this type of change to the DNS to enhance consumer trust and
choice, and reinforce the global nature of the Internet. It is also
expected that a portion of applications will be either generic words or
brand-focused as part of business development, investment, and startup
plans.
Some companies, however, have expressed concern that ICANN's
process for expanding gTLDs may lead to the filing of defensive
registrations. On December 21, 2011, Administrator Strickling and other
Department of Commerce leadership met with various stakeholders to hear
these concerns and, on January 3, 2012, Administrator Strickling sent a
letter to ICANN's Chairman of the Board, Stephen Crocker, raising this
and other issues. NTIA will continue to monitor stakeholder concerns
and raise issues as appropriate. A copy of his letter is attached.
Question 5. Several commenters also stated ``the market will decide
which TLDs succeed and which do not.'' What is wrong with allowing the
market to continue to decide with new gTLDs from the expansion?
Answer. NTIA agrees that the market will be a key determinant in
the success of new gTLDs and continues to be an active participant in
the multistakeholder process related to the gTLD program.
Question 6. If commenters are correct that ``there are no
artificial or arbitrary limits in other media on the number of places
in which trademark holders must defend against dilution'' then why
should we place ``artificial or arbitrary'' limits on the Internet?
Answer. In NTIA's recent discussions with stakeholders, it has
become clear that many organizations, particularly trademark owners,
believe they need to file defensive applications at the top level. It
appears that this possibility might not have been fully appreciated
during the multistakeholder process on the belief that the cost and
difficulty of operating a top-level registry would constrain companies
from filing defensive registrations. NTIA believes that it would not be
healthy for the expansion program if a large number of companies file
defensive top-level applications when they have no interest in
operating a registry. Accordingly, NTIA suggested in a January 3, 2012,
letter to ICANN that it consider taking measures to mitigate against
this possibility.
In addition, NTIA's letter cited an immediate need to improve
communication with stakeholders and potential new gTLD applicants prior
to the launch of the program. NTIA also advocated that following the
application period, ICANN use the data that will then be available to
examine the potential scope of the program and consider if there is a
need for a phased implementation of new gTLDs. Using that data, ICANN
can also explore the possibility of implementing additional protections
by new TLD operators at the second-level. In addition to addressing
these program-specific concerns, NTIA also reiterated the importance of
implementing a stronger registrar accreditation agreement; improving
current WHOIS policy; and dedicating resources to fully staff and equip
the contract compliance department, including creating a centralized
and automated complaint process. A copy of the January 3, 2012, letter
to ICANN is enclosed.
ICANN has now taken steps to enhance its outreach in the United
States, including holding an information session on January 11, 2012,
in Washington, D.C. In addition, NTIA was encouraged by ICANN's January
11, 2012, written response in which ICANN commits to review possible
improvements to the program, specifically to deal with the perceived
need for defensive registrations at the top-level, as well as to
complete a series of work streams that will facilitate more effective
tools for law enforcement and consumer protection. As is necessary in a
multistakeholder process, all of these efforts will require active
engagement by all parties prior to adoption.
Expansion of Internet Addresses
Question 7. The Internet has revolutionized some many different
areas of society and the economy. The innovation, adoption, and sheer
size of the Internet are simply unparalleled. The Internet currently
comprises of approximately 2 billion users and more than five billion
devices. Cisco estimates there will be more than 50 billion Internet
connected devices by 2020.
However, we have for the most part exhausted the existing pool of
Internet address--IPv4 provides for approximately 4.3 billion
addresses. The shortage has been the driving factor in creating and
adopting several new technologies as well as new and larger addressing
system, known as IP version 6. This migration from a 32-bit addressing
space to a 128-bit addressing, will provide 340 trillion, trillion,
trillion separate addresses--enough for every human bring to use many
trillions of address. With IPv6, there will be approximately 670,000 IP
addresses for every squared nanometer of the earth's service. To put
that into perspective, a human hair is 100,000 nanometers wide.
However, the implementation of IPv6 has been somewhat slow. Last
year, I read only about 20 percent of the Internet was IPv6 compatible
and while a recent survey shows adoption of IPv6 grew by 1,900 percent
over the past 12 months that results in only about 25 percent of .com,
.net, and .org Internet subdomains.
What is the status of the migration to IPv6 and what will it mean
for Internet users and businesses, domestic and globally?
Answer. Stakeholders are in varying stages of IPv6 deployment
depending on individual budgets, technological coordination, and
management. The Office of Management and Budget (OMB) has established
IPv6 transition deadlines for U.S. agencies, and the National Institute
for Standards and Technology (NIST) has begun tracking Federal agency
deployment. A set of industry-wide metrics related to IPv6 deployment
is lacking, however. This is one of the topics NTIA plans to address in
a multistakeholder workshop planned for the first quarter of 2012. For
Internet users, IPv6 will enable innovative new technologies and allow
the Internet to continue to grow and expand. IPv6 is increasingly being
integrated into equipment and services. There are some computer
operating systems that already include IPv6 and use IPv6 automatically
if it is available. Applications will follow as demand increases. For
domestic businesses, operational costs (e.g., staff training,
administrative costs) may constitute additional costs outside of normal
equipment refresh cycles.
Question 8. Is there anything governments can do to encourage
faster adoption of IPv6 as well as increase awareness to businesses and
citizens about the migration?
Answer. Government can continue to increase awareness about the
need to adopt IPv6 by convening public workshops and conducting
outreach. Government as a user can ensure that IPv6 is integrated and
deployed in its own networks through better coordination of its
acquisition and procurement activities across management, legal,
policy, and technical teams.
______
Response to Written Questions Submitted by Hon. Barbara Boxer to
Kurt Pritz
Question 1. Intellectual property rights holders have expressed
some concerns about the possibility of ICANN granting generic top-level
domain names (gTLDs) that could lead to consumer confusion, or
violations of trademark or other intellectual property rights. Could
you describe, in detail, the pre-grant procedures by which ICANN will
act to prevent gTLDs that could cause consumer confusion and/or
violation of intellectual property rights?
Answer. The New gTLD Program contains a suite of new, mandatory
intellectual property rights protection mechanisms, both at the first
level (for the top-level domains, or names to the right of the dot such
as .org) and at the second level (second-level domains, like
icann.org). The first level protections mitigate against applications
for and the approval of new TLDs that may infringe on the legal rights
of others or cause consumer confusion.
First, there is a high bar to participation in the Program. The
$185,000 evaluation fee itself is a bar to potential wrongdoing at the
top-level.\1\ In today's environment, second-level domain names are
available for $10. Wrongdoers easily leave them behind when the site is
exposed. The higher evaluation fee for top-level names in itself will
discourage abuse.
---------------------------------------------------------------------------
\1\ The fee was calculated based on a cost recovery model but the
amount has the side benefit of deterring frivolous or malicious
applications.
---------------------------------------------------------------------------
Second, the stringent reviews include measures specifically
targeted to identify--and reject--applicants that are bad actors or
have already demonstrated a history of cybersquatting. ICANN requires
background reviews of TLD applicants, including reviews for criminal
history (including the use of telecommunications or the Internet to
facilitate crimes, illegal sale of drugs, and others). In addition,
ICANN will reject applications where the applicant has a pattern of
adverse decisions under the UDRP (Uniform Domain Name Dispute
Resolution Policy), or has been found to act in bad faith or with
reckless disregard to their obligations under cybersquatting
legislation.
Third, the Program offers public review of the applied-for strings
and the opportunity to state an objection to any string. After the
April 12, 2012 close of the application window, ICANN will publish a
list of all applied-for gTLDs. (That publication will occur around May
1, 2012.) At that time, entities, individuals and governments can
review the list of strings and consider if they wish to object to any
individual application. In addition, the New gTLD Program allows
ICANN's Governmental Advisory Committee, comprised of representatives
of over 120 governments, to inform ICANN that there are concerns with
an application--concerns that may include issues of consumer confusion
or harm. If the Governmental Advisory Committee provides consensus
advice to the Board not to approve and application, that advice creates
a presumption in favor of denying the application.
There are four formal objection processes that can be initiated by
the public, each administered by a well-known international dispute
resolution service provider. Types of objections that can be lodged
are:
String Confusion Objection--The applied-for gTLD string is
confusingly similar to an existing TLD or to another applied
for gTLD string in the same round of applications.
Legal Rights Objection--The applied-for gTLD string
infringes the existing legal rights of the objector.
Limited Public Interest Objection--The applied-for gTLD
string is contrary to generally accepted legal norms of
morality and public order that are recognized under principles
of international law.
Community Objection--There is substantial opposition to the
gTLD application from a significant portion of the community to
which the gTLD string may be explicitly or implicitly targeted.
To avoid frivolous objections, parties must have standing to
object. For example, legal rights objectors must be the right holder or
intergovernmental organization whose rights are being infringed.
Objections lead to independent dispute resolution proceedings.
Parties are the objector and the gTLD applicant.
The International Centre for Dispute Resolution has agreed
to administer disputes brought pursuant to string confusion
objections.
The Arbitration and Mediation Center of the World
Intellectual Property Organization has agreed to administer
disputes brought pursuant to legal rights objections.
The International Center of Expertise of the International
Chamber of Commerce has agreed to administer disputes brought
pursuant to Limited Public Interest and Community Objections.
Standards of review for each of the objections have been carefully
crafted through reviews by intellectual property holders and the
Internet community. For example, in the case of rights infringement
objections, ``Strings'' must not infringe the existing legal rights of
others that are recognized or enforceable under generally accepted and
internationally recognized principles of law. A Dispute Resolution
Service Provider panel of experts presiding over a legal rights
objection will determine whether the potential use of the applied-for
gTLD by the applicant takes unfair advantage of the distinctive
character or the reputation of the objector's registered or
unregistered trademark or service mark (``mark'') or IGO name or
acronym (as identified in the treaty establishing the organization), or
unjustifiably impairs the distinctive character or the reputation of
the objector's mark or IGO name or acronym, or otherwise creates an
impermissible likelihood of confusion between the applied-for gTLD and
the objector's mark or IGO name or acronym.
In the case where the objection is based on trademark rights, the
panel will consider the following non-exclusive factors:
1. Whether the applied-for gTLD is identical or similar,
including in appearance, phonetic sound, or meaning, to the
objector's existing mark.
2. Whether the objector's acquisition and use of rights in the
mark has been bona fide.
3. Whether and to what extent there is recognition in the
relevant sector of the public of the sign corresponding to the
gTLD, as the mark of the objector, of the applicant or of a
third party.
4. Applicant's intent in applying for the gTLD, including
whether the applicant, at the time of application for the gTLD,
had knowledge of the objector's mark, or could not have
reasonably been unaware of that mark, and including whether the
applicant has engaged in a pattern of conduct whereby it
applied for or operates TLDs or registrations in TLDs which are
identical or confusingly similar to the marks of others.
5. Whether and to what extent the applicant has used, or has
made demonstrable preparations to use, the sign corresponding
to the gTLD in connection with a bona fide offering of goods or
services or a bona fide provision of information in a way that
does not interfere with the legitimate exercise by the objector
of its mark rights.
6. Whether the applicant has marks or other intellectual
property rights in the sign corresponding to the gTLD, and, if
so, whether any acquisition of such a right in the sign, and
use of the sign, has been bona fide, and whether the purported
or likely use of the gTLD by the applicant is consistent with
such acquisition or use.
7. Whether and to what extent the applicant has been commonly
known by the sign corresponding to the gTLD, and if so, whether
any purported or likely use of the gTLD by the applicant is
consistent therewith and bona fide.
8. Whether the applicant's intended use of the gTLD would
create a likelihood of confusion with the objector's mark as to
the source, sponsorship, affiliation, or endorsement of the
gTLD.
For a complete description of the standards and rules for the
objection and dispute resolution processes, see Module 3 of the
Applicant Guidebook, http://newgtlds.icann.org/en/applicants/agb/
objection-procedures-11jan12-en.pdf.
In addition, there will be a specialized function, an ``Independent
Objector'' that will act solely in the best interest of the public, and
may file an objection to an application that may give rise to the
concerns raised above.
As noted at the Subcommittee hearing, some trademark holders
continue to voice concern that the New gTLD Program does not offer
sufficient protections to reduce the need to submit defensive
applications for top-level domains. Detailed discussions with
intellectual property experts that participate actively in ICANN policy
development indicate that those experts who are knowledgeable of the
TLD marketplace are most comfortable with protections for top-level
names. In regards to the perceived need for defensive registrations at
the top-level by trademark holders, ICANN has already committed to
solicit information as expeditiously as possible from the intellectual
property community. This commitment, set out in a January 11, 2012
letter to Assistant Secretary for Communications and Information,
Lawrence Strickling, also committed ICANN to submit any new proposals
or recommendations arising out of that work for evaluation and comment
from the ICANN stakeholder community.
Question 2. It is my understanding that in previous expansions of
domain names, ICANN has allowed a ``sunrise'' period, prior to
considering applications, in order to allow rights holders to submit
information regarding their protected names and uses. The ``sunrise''
submissions by rights holders could act as a resource for ICANN to help
prevent consumer confusion and/or intellectual property rights
violations. Does ICANN plan to allow ``sunrise'' submissions by rights
holders, and if not, why?
Answer. Yes, a ``sunrise'' period is mandated for each new TLD
approved under the New gTLD Program.
ICANN is in the process of selecting providers for a Trademark
Clearinghouse, a central repository for information to be
authenticated, stored, and disseminated pertaining to the rights of
trademark holders. Trademark holders will have the opportunity to
record (i) Nationally or multi-nationally registered word marks from
all jurisdictions; (ii) Any word mark that has been validated through a
court of law or other judicial proceeding; (iii) Any word mark
protected by a statute or treaty in effect at the time the mark is
submitted to the Clearinghouse for inclusion; and (iv) other marks that
constitute intellectual property, all subject to the specific criteria
of the Clearinghouse.
The authenticated rights data in the Trademark Clearinghouse will
be used to support pre-launch Sunrise and Trademark Claims services.
All new gTLD registries will be required to use the Trademark
Clearinghouse to support the required pre-launch and initial launch
period rights protection mechanisms that must include, at minimum, a
Trademark Claims service and a Sunrise process.
The Trademark Clearinghouse is expected to create efficiencies and
for trademark holders. Instead of requiring trademark holders to
authenticate mark information for each separate new registry, the
authentication and validation processes can be completed once through
submission to the Trademark Clearinghouse.
Through the Sunrise process, trademark holders will have the
opportunity to register desired second-level domain names before a new
gTLD opens for general registration. Rights holders who have recorded
their data in the Trademark Clearinghouse will receive notice if a
third party registers a domain name matching the Clearinghouse record
during the sunrise period.
After the gTLD is accepting general registrations, ICANN requires
that each new TLD offer a Trademark Claims service to provide real-time
notices to prospective registrants where a domain name matches a
Clearinghouse record, and provide notice to trademark holders in cases
where domain names matching a Clearinghouse record are registered.
Information on the additional intellectual property protections
required under the New gTLD Program is detailed in my written
testimony.\2\
---------------------------------------------------------------------------
\2\ A summary of the trademark protections is available at http://
www.icann.org/en/topics/
new-gtlds/rights-holders-with-insert-02sep11-en.pdf and http://
www.icann.org/en/topics/new-
gtlds/trademark-factsheet-insert-02sep11-en.pdf.
---------------------------------------------------------------------------
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Kurt Pritz
DNS Security
Question 1. Mr. Pritz, my understanding is that all of the new
domains that will be selected by ICANN must agree to use the Domain
Name System Security Extensions, known as DNS SEC. DNS SEC uses public
key cryptographic digital signatures to authenticate the origin of the
DNS data and assure the integrity of the DNS data.
Currently, are DNS servers and DNS server software targeted
for attack by hackers?
Why is DNS SEC important to any broader global cyber-
security effort?
Does DNS SEC allow for any re-direction in its current
implementation? Could it be made to? What would be some of the
potential security vulnerabilities if DNS SEC were to allow any
redirection?
What is the status of DNS SEC implementation with respect to
existing domains? Is it realistic to expect that the new
domains will be compliant right from the start?
Answer. Today, DNS servers and server software are targeted for
attack by hackers. There are recent examples of incidents in which
hackers were able to impersonate DNS server responses, or feed false
data to the servers, ultimately redirecting end users to rogue sites to
install malware. For example, the ``DNS Charger'' case--recently the
subject of an indictment in the Southern District of New York, infected
over 4 million computers worldwide through this type of attack.
Coordinated deployment of DNSSEC is important in many respects.
First, it will protect against attacks on DNS servers and software.
Possibly even more important, however, the borderless nature of DNSSEC
deployment has--for the first time--created a global, cross-
organizational, trans-national platform for authentication, cyber
security innovation and international cooperation. This will make
DNSSEC a critical tool in combating the global nature of cyber crime.
DNSSEC does not allow for re-direction in its current
implementation. Re-direction requires a change to the original record
by a third party. With DNSSEC, any changes to the original record from
the domain name owner's servers will be detected and flagged as an
error or dropped. The validation occurs on the end user's machine to
provide true end-to-end security.
Any change to DNSSEC to allow for re-direction would defeat its
purpose. The purpose of DNSSEC is to use digital signatures to ensure
records do not get changed ``in flight.'' An alternative could be to
put full trust in your Internet service provider (ISP) to perform the
validation and enter manual re-direction entries, however this appears
to be an inadequate level of security. For example, in late 2011, an
attack on servers at multiple Brazilian ISPs caused redirection to
malware-infected sites before connecting the ISP's customers to popular
Internet sites. \3\ This affected millions of users, and demonstrates
that leaving validation to the ISP level is insufficient to protect
against attacks.
---------------------------------------------------------------------------
\3\ See e.g., ``Hackers poison Brazilian ISP DNS to infect users
with banking Trojan,'' TECHWORLD, Nov. 9, 2011 at http://
news.techworld.com/security/3317148/hackers-poison
-brazilian-isp-dns-to-infect-users-with-banking-trojan/.
---------------------------------------------------------------------------
If DNSSEC were to allow re-direction or filtering, that would make
the system again vulnerable to insider attacks. In addition, re-
direction could lead to poor performance due to the processing of large
re-direction lookup tables for the billions of DNS queries that happen
each day, as well as undesired responses. Re-direction could result--
with one click--permanently leading the end user to use alternate,
unfiltered and insecure non-DNSSEC validating servers.
DNSSEC adoption is growing. Today, 82 top-level domain name
registries (covering 82 percent of existing domain names), including
.COM and .ORG, have DNSSEC deployed. The new gTLD Program requires that
all new registries deploy DNSSEC. In the United States, Comcast has
begun rolling out DNSSEC to all 17.8 million of its Internet customers
\4\, and internationally, we've seen adoption by network carriers such
as Vodafone and Telefonica. It is realistic that new TLDs will be
compliant from their introduction, as required in the Program. It is
not a difficult requirement to meet, and current products, including
hardware have DNSSEC support built in. ICANN and other organizations
are regularly running training and awareness sessions to increase
DNSSEC adoption.
---------------------------------------------------------------------------
\4\ See, ``Comcast Completes DNSSEC Deployment,'' by Jason
Livingood, Vice President, Internet Systems, January 10, 2012 at http:/
/blog.comcast.com/2012/01/comcast-completes-dns
sec-deployment.html.
---------------------------------------------------------------------------
Cracking Down on Rogue Websites
Question 2. Mr. Pritz, do you believe that the increase in top
level domains combined with all the requirements ICANN is putting in
place will make its easier, more difficult, or not change the ability
of U.S authorities to crack down on Internet sites--to use the phase--
that are dedicated to infringing activity?
Answer . The New gTLD Program includes protections (not required in
today's TLD), designed to prevent malfeasance and to make it easier to
crack down on malicious conduct where it occurs. Some of the tools
directly relating to increased law enforcement access to information
and ability to combat malicious conduct in new TLDs include:
A requirement to maintain enhanced, or ``thick'', WHOIS
records at the registry level to allow more rapid search
capabilities, facilitating efficient resolution of malicious
conduct activities;
A centralized zone file access system to allow for more
accurate and rapid identification of key points of contact
within each gTLD. This reduces the time necessary to take
corrective action within TLDs experiencing malicious activity;
and
A requirement to establish a single point of contact
responsible for the handling of abuse complaints (as requested
by law enforcement authorities).
Background reviews of TLD applicants, including reviews for
criminal history (including the use of telecommunications or
the Internet to facilitate crimes, illegal sale of drugs, and
others);
Rejection of applications where the applicant has a pattern
of adverse decisions under the UDRP (Uniform Domain Name
Dispute Resolution Policy), or has been found to act in bad
faith or with reckless disregard to their obligations under
cybersquatting legislation;
The requirement to have a plan to implement domain name
system security extensions (DNSSEC), reducing the risk of
``man-in-the-middle'' attacks and spoofed DNS records; and
Requirements that New gTLD Registry Operators must:
Maintain a Continued Operations Instrument sufficient
to fund basic registry operations for a period of three
years in case of business failure, to protect consumers and
registrants within that gTLD in the event of registry
failure.
Maintain continuity and transition plans, including
regular failover testing.
Cooperate with ICANN In the event transition to a new
registry operator is necessary. ICANN will identify an
Emergency Back-End Registry Operator to assist in the
registry transition process and provide emergency registry
services as needed.
In addition, ICANN is actively working to address 12
recommendations made by law enforcement regarding strengthening ICANN's
contracts with its accredited registrars. Specifically, as directed by
the Board, ICANN is currently in negotiations with its accredited
registrars to amend the Registrar Accreditation Agreement (RAA) to meet
the recommendations raised by law enforcement authorities. Amendments
are expected to be in force prior to the entry of the first new gTLD in
2013.
These negotiations include face-to-face meetings with law
enforcement agencies to ensure understanding of law enforcement
requirements. The negotiation anticipates substantial and unprecedented
steps to improve the accuracy of Whois data. ICANN is taking a strong
stand in regard to issues relating to the verification of Whois data
and expects the accredited registrars to take action to address the
demands of governments and law enforcement worldwide. Updates on the
negotiations are available at https://community.icann.org/display/RAA/
Negotiations+Between+ICANN+and+
Registrars+to+Amend+the+Registrar+Accreditation+Agreement.
Question 3.
Mr. Pritz, how many new gTLD and other domains does ICANN
estimate will be created?
What is the process by which ICANN will award the new gTLD
and other domains? Will it be just a matter of who can bid the
most?
How much money is expected to be raised from the new gTLDs
and other domains?
What does ICANN intend to do with the funds? What are the
mechanisms in place to assure accountability?
Answer. The number of new gTLDs that will be created through this
first application round is still a matter of speculation. Early
estimates coming from the community postulated that there would be 500
or more applications. Recently, some have estimated that 1000 or more
applications will be made in the current round, opened on January 12,
2012. Once the application window closes on April 12, 2012, the
speculation will come to an end and the full number of applications
will be known. Not surprisingly, many companies are remaining quiet
about their business strategies regarding plans to establish new gTLDs,
making true estimates difficult.
If significantly more than 500 applications are received, the
applications will be processed in batches of 500. In addition, on the
advice of root server stability experts, ICANN has committed to limit
the number of new TLD entered into the root in any one year to 1,000.
The extensive application and evaluation process is set out in the
Applicant Guidebook, with over 300 pages of detail. Applicants must
meet all of the application criteria, pass the rigorous evaluations, as
well as pass through any of the four objection processes that may be
used against the application. The key to the application process,
however, is that it does not create a beauty contest among applicants
or impose arbitrary limitations such as type of application that
existed in two prior pilot rounds on new gTLDs. These pilot rounds are
described in detail in response to Senator McCaskill's question 2.
All applicants are expected to pay the $185,000 evaluation fee to
ICANN, unless the applicants qualify for financial support. If an
applicant qualifies for the available financial support, it will only
pay $47,000 towards the application fee. The $185,000 application fee
is calculated on a cost-recovery model, and was determined through a
comprehensive and complex process that included identifying over 100
separate tasks required for the evaluation of a new gTLD application
and seeking guidance from experts. The fee includes development costs
($26,950 per application); application processing and evaluation costs
($97,800 per application); and costs for risk mitigation steps,
including allowance for unanticipated costs and variations between
estimates and actual costs incurred ($60,000 per application). A 14-
page document setting out the methodology and further breakdown of the
fee component is available at http://www.icann.org/en/topics/new-gtlds/
cost-considerations-04oct
09-en.pdf. This document is an update to the earlier ``Cost
Considerations of the New gTLD Program'', published in October 2008,
available at http://www.icann
.org/en/topics/new-gtlds/cost-considerations-23oct08-en.pdf.
While there is a possibility that multiple applicants for the same
TLD could proceed to an auction to operate the TLD, ICANN intends the
auction process as a last-resort method. ICANN encourages applicants to
work together to arrive at a mutually-agreeable solution instead of
allowing the competing applications to proceed to an auction. To the
extent that a TLD proceeds to auction and generates additional funds, I
discuss below ICANN's commitments to using these funds towards its not-
for-profit mission.
As a Not-for-Profit Public Benefit Corporation, ICANN is committed
to its not-for-profit mission. For ICANN, that commitment requires us
to assure that excess funds generated through the New gTLD Program
(i.e., those that exceed the costs incurred for the processing,
evaluation and other components of the New gTLD Program) are used in
furtherance of ICANN's mission. The evaluation fee has been calculated
to recover costs and not exceed those costs. If evaluation fees exceed
actual costs, future evaluation fees will be reduced. If costs exceed
fees, then ICANN will absorb that and future fees will be increased to
meet the actual costs. For additional funds accruing to ICANN other
than evaluation fees, such as the auction proceeds mentioned, the
Applicant Guidebook addresses the issue in this way:\5\
---------------------------------------------------------------------------
\5\ See Module 4, Page 19 of the Applicant Guidebook, version 2010-
01-11.
It is planned that costs of the new gTLD program will offset by
fees, so any funds coming from a last resort contention
resolution mechanism such as auctions would result (after
paying for the auction process) in additional funding. Any
proceeds from auctions will be reserved and earmarked until the
uses of funds are determined. Funds must be used in a manner
that supports directly ICANN's Mission and Core Values and also
---------------------------------------------------------------------------
allows ICANN to maintain its not for profit status.
Possible uses of auction funds include formation of a
foundation with a clear mission and a transparent way to
allocate funds to projects that are of interest to the greater
Internet community, such as grants to support new gTLD
applications or registry operators from communities in
subsequent gTLD rounds, the creation of an ICANN-administered/
community-based fund for specific projects for the benefit of
the Internet community, the creation of a registry continuity
fund for the protection of registrants (ensuring that funds
would be in place to support the operation of a gTLD registry
until a successor could be found), or establishment of a
security fund to expand use of secure protocols, conduct
research, and support standards development organizations in
accordance with ICANN's security and stability mission.
ICANN handles its budgeting processes in an open and transparent
manner. Not only will the community discussion regarding the use of
excess funds be the subject of community consultation, but the funds
will also be tracked and accounted for within ICANN's publicly-posted
financial documents.
______
Response to Written Questions Submitted by Hon. Claire McCaskill to
Kurt Pritz
Question 1. I recognize that ICANN has put a tremendous amount of
work and study into the planned expansion of top-level domain names.
There have been a number of economic studies, dozens of comment periods
and seven versions of the Applicant Guidebook before the final one was
issued. ICANN clearly views the expansion of gTLDs as vital to the
growth and viability of the Internet.
Given how much time, effort and study has been put into this
decision, I find it disturbing that there is still so much dispute
about expansion. There is clearly a lack of consensus about these
changes in the business and non-profit industries as well as concerns
from law enforcement. This is not a decision to be taken lightly and I
believe there needs to be better agreement on the outstanding issues
from all interested parties.
Both of you have very differing opinions about the implications of
the gTLD expansion. Why has it taken this long to get this out in the
open?
Mr. Jaffe, there was an extensive comment period before the
guidelines were issued, which I'm sure you were aware of--did you and
other industries fully participate in the process? Do you disagree with
the economic studies that ICANN has cited saying this would increase
competition and innovation? If so, why?
Mr. Pritz, how much weight was given to the concerns raised by Mr.
Jaffe and others with his viewpoints? The danger of increased copyright
infringement appears to be a legitimate issue--do you agree?
Answer. Formation of rights protection mechanisms for the new gTLDs
has been an important, legitimate concern throughout the development of
the New gTLD Program.
The years of policy and implementation design work that have gone
into the New gTLD Program have formed a program that will result in
TLDs that are required to offer more protections than TLDs that have
already been introduced into the Domain Name System. The program was
designed over more than six years, with input from no less than ten
independent expert and community working groups addressing the issues
that ANA continues to raise outside of the multi-stakeholder process.
There are significant trademark protections designed by intellectual
property experts. There are substantial protections against registry
failure, including requirements for registry transition planning and
designation of emergency registry operators, so that even in the event
of registry failure, consumers will have a period of three to five
years until basic registry operations are concluded.
One of the hallmarks of ICANN is its ability to call together
world-class experts to consider issues facing the ongoing stability and
security of the Internet. For the new gTLD program, ICANN formed teams
of: intellectual property experts to develop trademark protection
mechanisms; Internet security experts to develop consumer protections;
registry operators to creates mechanisms to access registry data;
financial services providers to develop thresholds for ``secure'' TLDs;
and linguists to avoid user confusion.
In addition to those ten independent expert working groups formed,
ICANN published, 59 explanatory memoranda and independent reports,
thousands of comments in no fewer than 47 extended public comment
periods, and 1,400 pages of comment summary and analysis as part of the
community formation of the New gTLD Program. All comments were listened
to and taken into account across the eight versions of the Applicant
Guidebook. All of the rights protection mechanisms were borne of these
community consultations.
The Association of National Advertisers is just one of the hundreds
of voices that participated in the formation of the New gTLD Program.
The ANA provided feedback using ICANN's public comment process, and its
suggestions have been carefully considered as described below.
Referring to the comment submitted by the ANA on 15 December 2008, that
letter stated:
``Although ANA would have preferred ICANN to have decided
against introducing the gTLD proposal, we urge, at a minimum,
that ICANN move cautiously and consider points carefully before
embarking on this potentially seismic shift in domain
availability.''
The letter suggested five specific proposals that ICANN should, at
a minimum, consider:
1. Protections for Trademarks. ICANN should explore additional
application restrictions, processes and technologies to
insulate brand owners from the costs and burdens of chasing and
prosecuting squatters and others for violation of their
trademark rights.
In response to this and similar comments, ICANN convened the
Implementation Response Team (comprised of 18 intellectual property
experts) to recommend additional trademark protections, as discussed
within my testimony. The majority of those recommendations have been
incorporated, many in a stronger form than was originally proposed by
the IRT.
2. Transparency of Applications and Registration Information.
Some comments suggest transparency in the application process
(e.g., elimination of proxy registrations, heightened emphasis
on the provision of complete ``whois'' information, and posting
all gTLD applications) will lead to less abuse. ICANN should
examine these proposals as well.
In response to this and other comments: (1) more application
information will be made public in the process of publishing
information about the applied-for strings (personally identifiable
information and sensitive security or proprietary information are not
published), (2) background checks on applicants have been deepened, and
(3) all new gTLD registries are required to maintain a ``complete'' or
``thick'' Whois model. As discussed in response to Senator Cantwell's
Question 1, work to require verification of Whois information is
underway through ICANN's negotiations with its registrars on the
Registrar Accreditation Agreement. Those verification requirements are
expected to be in place prior to the entry of the first new gTLD.
3. Fees. ICANN should study the various issues raised
concerning fees, including those questions relating to how the
new proposed fee structure might impact fee structures with
existing gTLDs.
In response to this and other comments, fee structures have been
extensively studied. The process used for estimating fees has been
available since October 2008 and was iterated in response to public
comment, and an economic study was undertaken on registry competition
and price caps, which supported that price caps should not be
introduced within new TLDs absence a showing of market power. A
detailed discussion regarding the fee structure is provided in response
to Senator Cantwell's Question 2.
4. General Process Issues. ANA notes several application and
adjudication process issues that should be analyzed, including
ICANN's right to ``overrule'' the determination of a Dispute
Resolution Provider, the apparent absence of judicial remedy
and how allowing public comments on the application process
impacts it as a whole and, particularly, the objection process.
In response to this and other comments, elaborations were made to
the objection processes, and the roles of the Board, governments, and
public comment have been clarified. As discussed in my response to
Senator Boxer's Question 1, the objection processes are robust and
well-defined.
5. ``Generic'' gTLDs (e.g.,.bank, .insurance, .securities,
.medicine, etc.) have a unique social and commercial value as
they are broadly descriptive of industries and other unifying
activities. Under the terms of the Draft RFP, anyone can apply
for these ``generic'' gTLDs, including a single member of the
applicable industry. ANA suggests that ICANN thoroughly review
the uses and standing requirements for these gTLDs.
In response to this and other comments, and in particular working
with BITS (the policy division of The Financial Services Roundtable)
and the financial services industry, a requirement was added that
security capabilities should be commensurate with the nature of the
string, i.e., applications for strings with unique trust implications
are expected to provide a commensurate level of security. Applicants
are also given incentive to incorporate security levels that exceed the
baseline requirements. The gTLD criteria also references work
independently published by the American Bankers Association and The
Financial Services Roundtable as an illustrative example of how the
criteria for a high-security TLD could be satisfied. In the event that
a string is applied for and does not include appropriate security
measures, that could serve as the basis for objection or an issuance of
a GAC Early Warning regarding the string (a process where governments,
through the Governmental Advisory Committee, provides notice regarding
potential sensitivities with an application).
As seen from ICANN's responses, all of the ANA's comments were
considered, responded to, and, as is clear from the above, largely
accepted. This is indicative of the process that was followed with all
stakeholder comment on the New gTLD Program to arrive at a balanced
outcome.
The broad consensus work that went into the development of this
program does not mean that everyone is satisfied with the result. There
are some who wish for more restrictions; some for less. Lawrence
Strickling, Assistant Secretary of Commerce for Communications and
Information of the National Telecommunications and Information Agency,
U.S. Department of Commerce, recently described the process of building
consensus in ICANN's multistakeholder model, as well as the importance
of respecting the outcomes reached, noted that while the
multistakeholder process does not guarantee that everyone will be
satisfied with the outcome, it is critical to respect the process and
accept the outcome reached.\6\
---------------------------------------------------------------------------
\6\ Remarks of Assistant Secretary Strickling at the Practising Law
Institute's 29th Annual Telecommunications Policy & Regulation
Conference, December 8, 2011, available at http://www.ntia.doc.gov/
speechtestimony/2011/remarks-assistant-secretary-strickling-practising-
law-in
stitutes-29th-annual-te.
---------------------------------------------------------------------------
ICANN's opening of the application window for new TLDs is in
fulfillment of ICANN's role of accountability to the outcomes of the
multistakeholder model. ICANN remains accountable to evaluation of the
expansion and implementing refinements to the New gTLD Program that may
arise through the multistakeholder model.
With the opening of the application window, ICANN's work continues.
ICANN has already committed to solicit information as expeditiously as
possible from the intellectual property community. This commitment, set
out in a January 11, 2012 letter to Assistant Secretary for
Communications and Information, Lawrence Strickling, also committed
ICANN to submit any new proposals or recommendations arising out of
that work for evaluation and comment from the ICANN stakeholder
community.
ICANN has already committed to review the impacts of the rollout of
the New gTLD Program, including a post-launch study on the
effectiveness of the new trademark protections and any effects on root
zone operations, and a post-delegation economic study on the results of
the first set of new gTLDs. ICANN has also committed to undertake
reviews in accordance with the Affirmation of Commitments between the
United States Department of Commerce and ICANN, including a review
``that will examine the extent to which the introduction or expansion
of gTLDs has promoted competition, consumer trust and consumer choice,
as well as effectiveness of (a) the application and evaluation process,
and (b) safeguards put in place to mitigate issues involved in the
introduction or expansion.'' There will be opportunities for public
input regarding all of this post-launch work.
ICANN looks forward to ICANN and Internet community members
continuing their involvement within the multi-stakeholder model and
bringing their proposals for discussion among all of the Internet's
stakeholders.
Question 2. I know that ICANN is resistant to limiting the number
of new gTLDs because it does want to pick winners and losers about
which gTLDs should be added. But prior expansions have been limited.
What are the concerns now of trying a pilot or more limited expansion
to examine problems that may occur in the process?
Answer. ICANN has operated three pilot programs on the introduction
of new TLDs into the DNS. In 2000, ICANN launched a ``Proof of
Concept'' round, through which seven new TLDs were selected out of 44
applicants who proposed over 200 different potential TLDs. In 2004,
ICANN accepted applications for Sponsored Top-Level Domains (sTLDs),
specialized TLDs that are tied to defined sponsor communities (such as
.CAT for the Catalan-speaking community). Finally, ICANN launched the
Internationalized Domain Name country code TLD (IDN ccTLD) Fast Track
process in 2009 that, to date had resulted in the delegation of 30 IDN
TLDs, enabling countries and territories that use languages based on
scripts other than Latin to offer users domain names in non-Latin
characters (e.g., Arabic, Chinese, Devanagari, Russian, Thai scripts).
Through these pilot rounds, important lessons were learned. First,
new TLDs can safely be added to the DNS. Second, the imposition of
artificial restrictions on the rounds, such as the numerical
restriction imposed in 2000 and the type-restriction imposed in 2004
place ICANN in the position of picking winners and losers, as opposed
to fulfilling its mission of facilitating competition in the DNS.
Artificial restrictions also create incentives for applicants to work
to fit their TLD ideas into categories that may not be a true fit. The
outcomes of the pilot rounds also helped inform the heightened
protections in place for the New gTLD Program. The pilot programs
informed the creation of independent dispute resolution programs that
anticipate points of contention and provide paths for addressing
potential abuses, controversies and sensitivities. The Fast Track
program (and the IDN test bed before that) demonstrates that IDNs can
be safely delegated into the root zone. These lessons learned will
enable the realization of anticipated benefit in a safer environment.
The New gTLD Program will be implemented in a measured and limited
manner. Rather than limiting by number or type, the round is limited by
a high bar of required competencies and protections, and a limited
application period. There is a 90-day application window, followed by a
stringent evaluation process through which ICANN's expert evaluation
panels will evaluate registry abilities to meet the high technical and
operational requirements. The rollout of new gTLDs will be distributed
over time--no TLDs are expected to be operational prior to early 2013;
delegations of additional TLDs will be distributed after that, as the
applications pass through the evaluation and dispute resolution
processes. The imposition of otherwise artificial limitations on
today's New gTLD Program would only create incentives for the bad-
acting applicants to seek advantages in a subjective evaluation
process. The Program in place today allows applicants to be evaluated
against objective standards.
As part of the consensus-building process, ICANN has agreed with
governments and trademark holders that the next round of new TLD
applications should occur after studying the impact of this round `s
delegations on root zone stability and conducting a study on whether
new trademark protections should be adjusted. ICANN will undertake
these studies as soon as is practicable, in consultation with
stakeholders. ICANN will also provide public updates on the ongoing
process to determine the timing of the next round.
ICANN is also mindful of its commitments set forth in the
Affirmation of Commitments to, ``organize a review that will examine
the extent to which the introduction or expansion of gTLDs has promoted
competition, consumer trust and consumer choice, as well as
effectiveness of (a) the application and evaluation process, and (b)
safeguards put in place to mitigate issues involved in the introduction
or expansion.'' \7\
---------------------------------------------------------------------------
\7\ See http://www.icann.org/en/documents/affirmation-of-
commitments-30sep09-en.htm.
Question 3. I recognize that ICANN believes all of the issues have
been fully vetted and that everyone has had ample time to state their
views. But given the major disagreements that are still occurring, what
is the harm in delaying implementation to further work through these
issues in the hope of coming to a better consensus? In your view, what
would happen if ICANN does not start the expansion process in January?
Answer. On January 12, 2012, ICANN opened the first application
window for new gTLDs. As discussed within my written testimony, the
opening of the application window is only the first step to rolling out
new gTLDs, with the first new gTLD expected to be operational until
2013.
ICANN's opening of the application window in accordance with the
time-frame committed to in June 2011 was an important step in remaining
accountable to the Internet community. As noted above, work is still
ongoing--the Program will be subject to continued reviews and
refinements. However, with the years' worth of work already completed,
the ten independent expert working groups, 59 explanatory memoranda and
independent reports, thousands of comments in no fewer than 47 extended
public comment periods, and 1,400 pages of comment summary and
analysis, it was time for the Program to move into implementation so
that the Internet community can start analyzing its effects using true
data and experience.
Delaying the process serves those seeking to upset the multi-
stakeholder model, designed by the U.S. Government to ensure an open
Internet. Assistant Secretary Lawrence Strickling, recently stated:
The multistakeholder process does not guarantee that everyone
will be satisfied with the outcome. But it is critical to
preserving the model of Internet governance that has been so
successful to date that all parties respect and work through
the process and accept the outcome once a decision is reached.
When parties ask us to overturn the outcomes of these
processes, no matter how well-intentioned the request, they are
providing ``ammunition'' to other countries who attempt to
justify their unilateral actions to deny their citizens the
free flow of information on the Internet. This we will not do.
There is too much at stake here. [Emphasis added.] \8\
---------------------------------------------------------------------------
\8\ Remarks of Assistant Secretary Strickling at the Practising Law
Institute's 29th Annual Telecommunications Policy & Regulation
Conference, December 8, 2011, available at http://www.ntia.doc.gov/
speechtestimony/2011/remarks-assistant-secretary-strickling-practising-
law-in
stitutes-29th-annual-te.
---------------------------------------------------------------------------
______
Response to Written Questions Submitted by Hon. Mark Warner to
Kurt Pritz
Question 1. I understand the reasoning behind the high price of a
new top level domain. It is important to me that the new gTLDs are only
available to legitimate and serious organizations. However, up to 1,000
new TLD names at $185,000 a piece is a considerable increase in income
for ICANN. How will this money be used to regulate the expansive space
new gTLDs will create? What are your plans for excess revenue? Will
ICANN retain any revenue from the creation of new gTLDs? If so, how
much revenue do you anticipate ICANN will receive over the next five
years?
Answer. ICANN shares your concern that a high bar is created to
apply for a new gTLD, to help assure that new gTLDs are available to
organizations that are serious in commitment to operate a portion of
the Internet infrastructure. As discussed in response to Senator
Cantwell's Question 3, the New gTLD Program fee is operated on a cost-
recovery basis. As provided to Senator Cantwell:
The $185,000 application fee is calculated on a cost-recovery
model, and was determined through a comprehensive and complex process
that included identifying over 100 separate tasks required for the
evaluation of a new gTLD application and seeking guidance from experts.
The fee includes development costs ($26,950 per application);
application processing and evaluation costs ($97,800 per application);
and costs for expected contingencies, including allowance for
unanticipated costs and variations between estimates and actual costs
incurred ($60,000 per application). A 14-page document setting out the
methodology and further breakdown of the fee component is available at
http://www.icann.org/en/topics/new-gtlds/cost-consid
erations-04oct09-en.pdf. This document is an update to the earlier
``Cost Considerations of the New gTLD Program'', published in October
2008, available at http://www.icann.org/en/topics/new-gtlds/cost-
considerations-23oct08-en.pdf.
While there is a possibility that multiple applicants for the same
TLD could proceed to an auction to operate the TLD, ICANN intends the
auction process as a last-resort method. ICANN encourages applicants to
work together to arrive at a mutually-agreeable solution instead of
allowing the competing applications to proceed to an auction. To the
extent that a TLD proceeds to auction and generates additional funds, I
discuss below ICANN's commitments to using these funds towards its not-
for-profit mission.
As a Not-for-Profit Public Benefit Corporation, ICANN is committed
to its not-for-profit mission. For ICANN, that commitment requires us
to assure that excess funds generated through the New gTLD Program
(i.e., those that exceed the costs incurred for the processing,
evaluation and other components of the New gTLD Program) are used in
furtherance of ICANN's mission. The evaluation fee has been calculated
to recover costs and not exceed those costs. If evaluation fees exceed
actual costs, future evaluation fees will be reduced. If costs exceed
fees, then ICANN will absorb that and future fees will be increased to
meet the actual costs. For additional funds accruing to ICANN other
than evaluation fees, such as the auction proceeds mentioned, the
Applicant Guidebook addresses the issue in this way:\9\
---------------------------------------------------------------------------
\9\ See Module 4, Page 19 of the Applicant Guidebook, version 2010-
01-11.
It is planned that costs of the new gTLD program will offset by
fees, so any funds coming from a last resort contention resolution
mechanism such as auctions would result (after paying for the auction
process) in additional funding. Any proceeds from auctions will be
reserved and earmarked until the uses of funds are determined. Funds
must be used in a manner that supports directly ICANN's Mission and
Core Values and also allows ICANN to maintain its not for profit
---------------------------------------------------------------------------
status.
Possible uses of auction funds include formation of a foundation
with a clear mission and a transparent way to allocate funds to
projects that are of interest to the greater Internet community, such
as grants to support new gTLD applications or registry operators from
communities in subsequent gTLD rounds, the creation of an ICANN-
administered/community-based fund for specific projects for the benefit
of the Internet community, the creation of a registry continuity fund
for the protection of registrants (ensuring that funds would be in
place to support the operation of a gTLD registry until a successor
could be found), or establishment of a security fund to expand use of
secure protocols, conduct research, and support standards development
organizations in accordance with ICANN's security and stability
mission.
In addition to evaluation fees, each registry will contribute
$25,000 annually to ICANN operations, policy development and community
outreach activities. (If some registries become very large, they will
pay greater fees.) That fee will cover contractual compliance, registry
and IANA services for that registry, as well as contribute to the
general ICANN activities described here. It has been urged by the
community that ICANN ``staff-up'' to meet compliance, IANA function and
other needs to adequately serve the new environment. If these revenues
exceed needs, fees will be reduced.
ICANN handles its budgeting processes in an open and transparent
manner. Not only will the community discussion regarding the use of
funds be the subject of community consultation, but the funds will also
be tracked and accounted for within ICANN's publicly-posted financial
documents.
Question 2. Federal Trade Commission Chairman Leibowitz recently
stated that ``a rapid, exponential expansion of generic TLDs has the
potential to magnify both the abuse of the domain name system and the
corresponding challenges we encounter in tracking down Internet
fraudsters.'' His statement echoes the concerns of many that this
expansion may be necessary, but the expansion from 21 gTLDs to up to
1000 gTLDs sounds extreme.
a. Why did ICANN choose to go from twenty-one top level domains up
to over 500 in the first wave, or 1000 overall, instead of a more
gradual increase over a set period of years? Can you please explain why
this particular expansion program is the best plan for industry and
consumers?
Answer. The domain name system (DNS) today includes over 300 TLDs:
249 ccTLDs, 30 IDN ccTLDs, and 21 gTLDs. None of those 300 existing
TLDs are required to include the standard protections that new TLDs
must offer. The protections of the New gTLD Program were formed through
ICANN's multi-stakeholder model.
ICANN has operated three pilot programs on the introduction of new
TLDs into the DNS. In 2000, ICANN launched a ``Proof of Concept''
round, through which seven new TLDs were selected out of 44 applicants
(proposing over 200 different potential TLDs). In 2004, ICANN accepted
applications for Sponsored Top-Level Domains (sTLDs), specialized TLDs
that are tied to defined sponsor communities (such as .CAT for the
Catalan-speaking community). Finally, ICANN launched the IDN ccTLD Fast
Track process in 2009 that, to date had resulted in the delegation of
30 IDN TLDs.
Through these pilot rounds, important lessons were learned. First,
new TLDs can safely be added to the DNS. Second, the imposition of
artificial restrictions on the rounds, such as the numerical
restriction imposed in 2000 and the type-restriction imposed in 2004
place ICANN in the position of picking winners and losers, as opposed
to fulfilling its mission of facilitating competition in the DNS.
Artificial restrictions also create incentives for applicants to work
to fit their TLD ideas into categories that may not be a true fit. The
outcomes of the pilot rounds also helped inform the heightened
protections in place for the New gTLD Program.
The gTLDs approved under this program will be introduced in a
measured, limited manner. Rather than limiting by number or type, the
round is limited by a high bar of required competencies and
protections, and a limited application period. There is a 90-day
application window, followed by a stringent evaluation process through
which ICANN's expert evaluation panels will evaluate registry abilities
to meet the high technical and operational requirements. The rollout of
new gTLDs will be distributed over time--no TLDs are expected to be
operational prior to early 2013; delegations of additional TLDs will be
distributed after that, as the applications pass through the evaluation
and dispute resolution processes. The imposition of otherwise
artificial limitations on today's New gTLD Program would only create
incentives for the bad-acting applicants to seek advantages in a
subjective evaluation process. The Program in place today allows
applicants to be evaluated against objective standards.
As part of the consensus-building process, ICANN has agreed with
governments and trademark holders that the next round of new TLD
applications should occur after studying the impact of this round `s
delegations on root zone stability and conducting a study on whether
new trademark protections should be adjusted. ICANN will undertake
these studies as soon as is practicable, in consultation with
stakeholders. ICANN will also provide public updates on the ongoing
process to determine the timing of the next round.
ICANN is also mindful of its commitment in the Affirmation of
Commitments to, ``organize a review that will examine the extent to
which the introduction or expansion of gTLDs has promoted competition,
consumer trust and consumer choice, as well as effectiveness of (a) the
application and evaluation process, and (b) safeguards put in place to
mitigate issues involved in the introduction or expansion.'' \10\
---------------------------------------------------------------------------
\10\ See http://www.icann.org/en/documents/affirmation-of-
commitments-30sep09-en.htm.
---------------------------------------------------------------------------
As discussed previously, the New gTLD Program today is created
through over six years of policy and implementation work. The policy
recommendations to guide the introduction of new gTLDs were created by
the ICANN's Generic Names Supporting Organization (GNSO) over a two-
year effort through its bottom-up, multi-stakeholder policy development
process. The GNSO Council is comprised of all facets of the Internet
community: Intellectual Property interests; business and commercial
users; ISPs; non-commercial institutions, and ICANN's contracted
registries and registrars.
In 2005, the GNSO initiated a formal, Bylaws-defined policy
development process on the addition of new gTLDs. Policy
recommendations are formed through consensus building among stakeholder
groups representing: intellectual property, business, non-commercial
interest, Internet service providers, registries and registrars. In the
case of this program and the release of gTLDs in this manner, the GNSO
approved the policy recommendations in 2007 by a bylaw described 19-1
vote in favor of the new gTLD Policy (the lone dissenting vote by a
non-commercial interest found that the approved model had too many
restrictions). The policy recommendations were submitted to ICANN's
Board of Directors. In 2008, the ICANN Board approved the
recommendations \11\ and directed ICANN staff to commence the
implementation phase.
---------------------------------------------------------------------------
\11\ GNSO Final Report on the Introduction of New Top Level Domains
(``Final Report''), at http://gnso.icann.org/issues/new-gtlds/pdp-
dec05-fr-parta-08aug07.htm (Aug. 8, 2007); ICANN Board resolution,
http://www.icann.org/en/minutes/resolutions-26jun08.htm (June 26,
2008); GNSO Minutes, http://gnso.icann.org/meetings/minutes-gnso-
29oct03.html (Oct. 29, 2003).
Also see The GAC Principles Regarding New gTLDs, at http://
gac.icann.org/system/files
/gTLD_principles_0.pdf (Mar. 28, 2007).
---------------------------------------------------------------------------
After the directive to implement, ICANN continued working with the
community on the design of the New gTLD Program to meet the policy
recommendations. Since 2008, the New gTLD Program has been refined
through ten independent expert working groups, 59 explanatory memoranda
and independent reports, thousands of comments in no fewer than 47
extended public comment periods, and 1400 pages of comment summary and
analysis. All comments were listened to and taken into account across
eight versions of the Applicant Guidebook. The Applicant Guidebook
implements the consensus polices developed by ICANN's multi-stakeholder
community.
Question 3. Cyber-crime is a growing threat to the security and
stability of the Internet, with broad and direct public policy and
financial impacts. Law enforcement agencies, which have experience
combating cyber-crime, have identified a series of specific problems
which are limiting their ability to address this growing threat. In
2009, these law enforcement agencies made 12 concrete recommendations
to reduce the risk of criminal abuse of the domain name system. It is
my understanding that none of the recommendations offered by law
enforcement were included in the gTLD expansion program.
a. Can you please explain why ICANN chose not to include these
recommendations?
b. How will ICANN cooperate with law enforcement moving forward to
make sure that safety concerns are properly addressed?
c. How does ICANN plan to review applications from state-owned
enterprises?
d. If problems develop in any of the new gTLDs, how will ICANN be
able to adequately monitor and police any abuses or mismanagement?
Answer.
Law Enforcement Recommendations are Being Addressed
As mentioned in response to Senator's Cantwell's Question 2, ICANN
is actively working to address all twelve of the law enforcement
recommendations referenced in the GAC's October 27, 2011 communication.
Specifically, as directed by the Board, ICANN is currently in
negotiations with its accredited registrars on amending the Registrar
Accreditation Agreement (RAA) to meet the recommendations raised by law
enforcement authorities. Amendments are expected to be in force prior
to the entry of the first new TLD in 2013.
These negotiations include face-to-face meetings with law
enforcement agencies to ensure understanding of law enforcement
requirements. The negotiation anticipates substantial and unprecedented
steps to improve the accuracy of Whois data. ICANN is taking a strong
stand in regard to issues relating to the verification of Whois data
and expects the accredited registrars to take action to address the
demands of governments and law enforcement worldwide. Updates on the
negotiations are available at https://community.icann.org/display/RAA/
Negotiations+Between+ICANN+and+
Registrars+to+Amend+the+Registrar+Accreditation+Agreement.
By February 20, 2012, proposed amendments to address the law
enforcement recommendations (and more) will be posted for public
comment. One important aspect of the negotiations focuses on the
verification of Whois data, and work is underway to plan a targeted
forum, including representatives of law enforcement and experts in
verification. This forum would be open to the public and is expected to
take place before the ICANN meeting in Costa Rica.
Law Enforcement Helped Design New gTLD Protections
Addressing the 12 law enforcement recommendations for improvement
to the gTLD registrars is just one part of how ICANN remains responsive
to law enforcement. In fact, law enforcement agencies worldwide have
worked closely with ICANN in the new gTLD implementation process, with
a goal of reducing domain name abuses. Representatives of U.S. law
enforcement agencies played a critical role in proposing standards for
background screening for applicants. Law enforcement agencies
worldwide, including the FBI, the UK Serious Organized Crimes Agency
(SOCA) and the Royal Canadian Mounted Police, supported proposals to
aid in the prevention and disruption of efforts to exploit domain name
registration procedures for criminal purposes. ICANN has built a
relationship with Interpol and discussed safeguards and, in particular,
the implementation of meaningful background checks.
My testimony outlined a series of measures to mitigate against
malicious conduct in new gTLDs, formed in part through law enforcement
recommendation and involvement. Those measures include:
Background reviews of TLD applicants, including reviews for
criminal history (including the use of telecommunications or
the Internet to facilitate crimes, illegal sale of drugs, and
others);
Rejection of applications where the applicant has a pattern
of adverse decisions under the UDRP (Uniform Domain Name
Dispute Resolution Policy), or has been found to act in bad
faith or reckless disregard under cybersquatting legislation;
The requirement to have a plan to implement domain name
system security extensions (DNSSEC), reducing the risk of
``man-in-the-middle'' attacks and spoofed DNS records;
A requirement to maintain enhanced, or ``thick'', WHOIS
records at the registry level to allow more rapid search
capabilities, facilitating efficient resolution of malicious
conduct activities;
A centralized zone file access system to allow for more
accurate and rapid identification of key points of contact
within each gTLD. This reduces the time necessary to take
corrective action within TLDs experiencing malicious activity;
A requirement to establish a single point of contact
responsible for the handling of abuse complaints (as requested
by law enforcement authorities);
Requirements that New gTLD Registry Operators must:
Maintain a Continued Operations Instrument sufficient to
fund basic registry operations for a period of three years
in case of business failure, to protect consumers and
registrants within that gTLD in the event of registry
failure.
Maintain continuity and transition plans, including
regular failover testing.
Cooperate with ICANN In the event transition to a new
registry operator is necessary. ICANN will identify an
Emergency Back-End Registry Operator to assist in the
registry transition process and provide emergency registry
services as needed.
DNS abuse and security are regularly the subject of collaborative
meetings between ICANN and the U.S. law enforcement community, as well
as representatives of international agencies.\12\ ICANN expects this
successful collaboration to continue. To that end, there are formal
``DNS Abuse'' sessions at every ICANN public meeting where ICANN and
law enforcement representatives come together to advance this important
work.
---------------------------------------------------------------------------
\12\ ICANN's relationships with law enforcement are not limited to
the New gTLD Program; ICANN coordinates regularly on security-related
issues and to address threats to the DNS.
---------------------------------------------------------------------------
Applications from State-Owned Enterprises
All applications under the New gTLD Program are subject to the same
application and evaluation process as laid out in the Applicant
Guidebook. As part of the application process, ICANN acts in compliance
with all U.S. laws, rules and regulation. This includes the economic
and trade sanctions program administered by the Office of Foreign
Assets Control (OFAC) of the U.S. Department of the Treasury. ICANN is
prohibited from providing most goods or services to residents of
sanctioned countries or their governmental entities or to specially
designated nationals and blocked person without an applicable U.S.
government authorization or exemption. ICANN generally will not seek a
license to provide services (through the gTLD Program or elsewhere) to
an individual or entity on the SDN list.
ICANN Commits to Continued Monitoring of New gTLDs
In response to your Question 1, we identify the reviews that ICANN
has committed to undertake to assist in identifying the results of this
first round. In addition to these reviews, ICANN is committed to a
continued monitoring of the effects of the measured rollout of new
TLDs, as well as working with law enforcement and the Internet
community as a whole to identify new areas of concern and to be
proactive in determining how to address new issues as they arise.
Question 4. There are a number of failed top-level domain names
from previous ICANN expansions--``.museum'' for instance.
Unfortunately, such failures can be costly for companies that have
registered and they can be disruptive to users. Further, I understand
that ICANN's own reports indicate that ``if a new gTLD failed and
ceased operation, external costs might be imposed on the Internet
community. Registrants . . . might be stranded. . . . Internet users
might face increased clutter on the Internet if links fail to
resolve.''
a. The high-tech companies in Virginia- not to mention Internet
users generally--would not welcome such volatility. What, if anything,
has been done to address this concern?
Answer. While the .museum registry may not have achieved a level of
desired success or adoption, the .museum registry is still operational.
No gTLD registries have failed during ICANN's existence. However, the
risk of potential failure for a new gTLD registry is an understandable
and valid concern. Among other safeguards, ICANN has in place provision
for an ``Emergency Back End Registry Provider'' to take over operations
for a failed registry to ensure the interests of registrants are
protected and domain names continue to resolve.
The issue of registry failure has been considered in detail through
the work on the New gTLD Program. First, the extensive evaluation
process will help assure that only companies that meet the stringent
financial requirements are able to operate new TLDs. Of course, this
pre-emptive evaluation process may not fully protect against future
registry failure, and ICANN has included multiple additional
protections within the New gTLD Program to address potential failure.
During the application process, applicants are required to provide
evidence that critical functions of the registry will continue to be
performed even if the registry fails. This includes a requirement that
the costs for maintaining critical registry functions over an extended
period of time (between three to five years) be estimated as part of
the application process, and registries must have available a
Continuing Operations Instrument (funded through a letter of credit or
an escrow account) that ICANN may invoke to pay an third party to
maintain the critical registry functions.
ICANN is currently working to identify the entity that will serve
as an Emergency Back End Registry Operator (EBERO), which will step in
to perform the critical registry functions during the three-to-five
year period. These provisions are expected to protect registrants
against the risk of immediate registry failure.
To facilitate any need for emergency transition, ICANN also
requires the escrow of registry data that the EBERO would be allowed to
access for the purpose of providing the registry services.
In the event of a termination of a Registry Agreement, and in
consultation with the registry operator, ICANN maintains the right to
determine whether to transition the operation of a TLD to a successor
registry operator as is necessary to protect the public interest.
Transition is not required, however, if a registry operator's use of
the TLD is for its own exclusive use and all names are registered and
maintained by the registry operator.
Question 5. The protection and development of intellectual property
is essential to economic growth in technology, and especially important
to high-tech entities in Virginia. I am told that ICANN's own experts
have said the following: ``There may also be indirect harm from the
loss of intellectual property owners' incentives to invest in that
intellectual property due to concerns that some of the benefits of that
investment would be misappropriated.''
a. Is this an accurate statement?
b. Has anything been done to address this issue? If not, why is
this expansion going forward in the face of such risks?
Answer. Prior to this rollout, ICANN commissioned five economic
studies that examined anticipated benefits and costs of the new gTLD
program, the effects of price constraints, and the benefits of vertical
integration. All support a conclusion that Internet users stand to
benefit from the introduction of new gTLDs and that potential costs
should be mitigated with the introduction of new safeguards.
As part of this work, economists did note that one of the potential
external costs that may be imposed through new gTLDs is the impact on
investments in intellectual property. However, in the same report, the
economists clarified that these external costs can be reduced through
the institution of ``rules and procedure to protect companies'
intellectual property rights.'' The economists noted that there are a
range of effective rights protection mechanisms that balance
intellectual property protections against the interests of those with
legitimate interests in registering a domain name, including watch
lists and sunrise periods. This is discussed in Michael Katz, Gregory
Rosston and Theresa Sullivan's report entitled Economic Considerations
in the Expansion of Generic Top-Level Domain Names--Phase II Report:
Case Studies, available at http://www.icann.org/en/topics/new-gtlds/
phase-two
-economic-considerations-03dec10-en.pdf.
ICANN, with experts from the intellectual property community,
addressed this cost/benefit concern. Trademark experts created rights
protection mechanisms that exceed the bar suggested by the economists.
The new trademark protection that help protect intellectual property
rights and combat abuses include:
Uniform Rapid Suspension: A rapid, inexpensive way to take
down infringing domain names;
Trademark Clearinghouse: a one-stop shop so that trademark
holders can protect their property right in ALL new TLDs with
one registration;
Mandatory sunrise and Trademark Claims processes for all new
gTLDs;
The requirement to maintain thick Whois information,
provision of centralized access to zone data, and a strong
incentive to provide a searchable Whois database--all to make
it easier to find infringing parties; and
A post-delegation dispute procedure where rights holders can
assert claims directly against TLD registry operators for
domain name abuse if the registry has played an active role.
The implementation work to create the New gTLD Program carefully
identified risks such as the one raised in your question, and created
expert-informed solutions to address those risks. The Katz/Rosston
report is just one of five economic studies performed in consideration
of the New gTLD Program. All supported a conclusion that Internet users
stand to benefit from the introduction of new gTLDs.
The four additional reports are:
Dr. Dennis Carlton, Report Regarding ICANN's Proposed
Mechanism for Introducing New gTLDs, at http://www.icann.org/
en/topics/new-gtlds/carlton-re-
proposed-mechanism-05jun09-en.pdf (``Carlton I'');
Dr. Dennis Carlton, Preliminary Analysis Regarding Price
Caps for New gTLD Internet Registries, at http://www.icann.org/
en/topics/new-gtlds/prelim-report
-registry-price-caps-04mar09-en.pdf (``Carlton II'');
CRA International, Revisiting Vertical Separation of
Registries and Registrars, at http://www.icann.org/en/topics/
new-gtld-crai-report-24oct08-en.pdf;
Michael Katz, Gregory Rosston and Theresa Sullivan, An
Economic Framework for the Analysis of the Expansion of Generic
Top-Level Domain Names, at http://www.icann.org/en/topics/new-
gtlds/economic-analysis-of-new-gtlds-16ju
n10-en.pdf (``Katz/Rosston Phase I''); and
The reports are detailed. Briefly summarized, the reports indicate
that: benefits will accrue from the opening of this market in a way
similar to other markets; innovation (and thus benefit) is difficult/
impossible to quantify; and costs should be mitigated through the
adoption of new trademark and consumer protections.
This work followed the careful consideration of the Internet
community through ICANN's bottom-up process.
Given the scope of the economic study already undertaken, as well
as the commitment to measuring the effects of new gTLDs once there is
actual data to inform that assessment, the Board and the Governmental
Advisory Committee agree that further economic study would not be
beneficial prior to the opening of the application round. Instead, the
Board and the GAC focused on the collection of information that will
inform the analysis of the effects of the introduction of new gTLDs
after this first round. The Applicant Guidebook now includes
application questions that are specifically targeted to collect
information relating to stated purposes and anticipated outcomes of
each application, for use in later studies.
Question 6. I've heard a number of questions from industry
regarding their concerns with the new TLD system. However, these
changes will also impact Internet users. I am concerned that some of my
constituents will be confused by the new TLD program at the least and
could be exposed to additional consumer harm such as cybersquatting,
typosquatting, phishing, malware, etc. If it is more difficult for
Internet users to determine whether a website is legitimate, it will be
easier for criminals to lure Internet users to fake websites that
include malicious content.
a. Can you please explain how the new program will change the
Internet for consumers?
b. How will ICANN work to make sure users are aware a coming
changes and know how to navigate the new landscape?
What specific safeguards will be put into place to prevent
cybersquatting and typosquatting?
Answer. The protections within the New gTLD Program will create
TLDs that are more secure for Internet users. For example, all new TLDs
are required to implement domain name security extensions (DNSSEC),
reducing the risk of ``man-in-the-middle'' attacks and spoofed DNS
records. In terms of user confusion as a result of cybersquatting, the
new protections for intellectual property and to mitigate malicious
conduct all work to reduce cybersquatting activities in the expanded
space. We expect that new TLDs will be a less fertile ground for
wrongdoing and, as a result, the Domain Name System, as a whole will be
improved. Abuses are prevalent in the larger TLDs, not within the
smaller, more differentiated registries.
While there is always some uncertainty and concern with change,
Internet users have always proved adept at adapting to change and
taking advantage of new, value-added services. In the case of new
gTLDs, it is thought that the new landscape will reduce confusion. TLDs
that are clearly tied to brands or communities will create consumer
awareness and result in more certainty. Also, that brand awareness will
build certainty that a domain is what it purports to be--that is,
reduce the risks of cybersquatting. As an example, take senate.gov
names: users have great certainty that use of a .gov name will reliably
lead to a U.S. Government site.
The New gTLD Program allows for community-based TLDs, as well as
other TLDs that will have special attributes that may make them
attractive to users. For example, work has been conducted towards
creating a higher security TLD for the financial services industry,
where the registry operator would commit to additional protections for
the development of a TLD where consumers know they are making financial
transactions in a trusted space. The opportunities that may be
available in new gTLDs are endless--the opening of the new gTLD space
will allow for creativity and innovation that follows the opening of
other markets.
ICANN and the Internet community recognize that there will be a
need to educate consumers about the changing landscape of the Internet,
and ICANN understands that communication and education is a necessary
component of any rollout. ICANN is working with its stakeholder
community to plan for this educational work.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Kurt Pritz
United Nations Model
Question 1. There has been a growing contingency of other countries
critical of the ICANN multi-stakeholder model and about the US'
involvement and influence with ICANN. Some governments, not necessarily
friendly to the U.S., are seeking to increase their power over the
Internet and its governance.
Russia and China (with Tajikistan and Uzbekistan) have proposed to
the United Nations an Internet ``Code of Conduct,'' which a senior
State Department official stated ``they seek to justify the
establishment of sovereign government control over Internet resources
and over freedom of expression in order to maintain the security of
their state.\13\'' Even Russian Prime Minister Vladimir Putin remarked
recently his desire of ``establishing international control over the
Internet using the monitoring and supervisory capabilities of the
International Telecommunication Union (ITU).\14\''
---------------------------------------------------------------------------
\13\ http://www.huffingtonpost.com/2011/09/27/russia-china-
internet-control_n_984223.html.
\14\ http://premier.gov.ru/eng/events/news/15601/.
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The other proposal by India, Brazil and South Africa calls for the
creation of a new body within the United Nations to oversee Internet
policy. As a result, ICANN as well as the Internet Governance Forum
(IGF) could be significantly marginalized or hijacked by this new U.N.
entity.
These proposals seem to be in direct conflict with our Nation's
effort to privatize the Internet through transferring the authority of
the DNS to the private sector and for the Internet governance model to
be private-sector led.
If the U.S. Government followed the advice to unilaterally delay
the gTLD expansion, what do you believe the impact would be globally
and do you believe this would fan the flames of anti-U.S. government
sentiment with respect to Internet governance? Could it give more
momentum to other governments' calls to have the United Nations assert
oversight over ICANN or replace it altogether?
Answer. If the U.S. Government or any entity unilaterally modified
a decision by ICANN's multistakeholder community, it would undermine if
not decimate the legitimacy and credibility of the multistakeholder
model. Lawrence Strickling, Assistant Secretary of Commerce for
Communications and Information, has spoken forcefully on two recent
occasions in support of the multistakeholder model and the danger
presented by requests for the U.S. Government to unilaterally modify
the new gTLD program. On December 8, 2011,\15\ he addressed these
points as follows:
---------------------------------------------------------------------------
\15\ Remarks of Assistant Secretary Strickling at the Practising
Law Institute's 29th Annual Telecommunications Policy & Regulation
Conference on December 8, 2011, (available at http://www.ntia.doc.gov/
speechtestimony/2011/remarks-assistant-secretary-strickling-practising-
law-in
stitutes-29th-annual-te).
[W]e are now seeing parties that did not like the outcome of
that multistakeholder process trying to collaterally attack the
outcome and seek unilateral action by the U.S. government to
overturn or delay the product of a six-year multistakeholder
process that engaged folks from all over the world. The
multistakeholder process does not guarantee that everyone will
be satisfied with the outcome. But it is critical to preserving
the model of Internet governance that has been so successful to
date that all parties respect and work through the process and
accept the outcome once a decision is reached. When parties ask
us to overturn the outcomes of these processes, no matter how
well intentioned the request, they are providing ``ammunition''
to other countries who attempt to justify their unilateral
actions to deny their citizens the free flow of information on
the Internet. This we will not do. There is too much at stake
---------------------------------------------------------------------------
here. [Emphasis added.]
On January 11, 2012 \16\ he stated:
---------------------------------------------------------------------------
\16\ Remarks by Assistant Secretary Strickling at the Brookings
Institution's Center for Technology Innovation, January 11, 2012
(available at http://www.ntia.doc.gov/speechtestimony
/2012/remarks-assistant-secretary-strickling-brookings-institutions-
center-technology).
[M]ultistakeholder processes have succeeded by their very
nature of openness and inclusiveness. They are most capable of
attacking issues with the speed and flexibility required in
---------------------------------------------------------------------------
this rapidly changing Internet environment.
Nonetheless, we face challenges to this model even in our own
country.
. . .
For the last six years, ICANN and its many stakeholders have
debated the rules for expanding of the domain name system
(DNS)--essentially the Internet's address book--through the
introduction of new generic top-level domain names (gTLDs).
ICANN's process involved global stakeholders from the business
community, civil society, registries, registrars, and
governments. Nonetheless, in December we saw parties that did
not like the outcome of that multistakeholder process trying to
bypass ICANN by seeking unilateral action by the U.S.
government to overturn or delay the product of a six-year
multistakeholder process that engaged folks from all over the
world.
. . .
Each challenge to the multistakeholder model has implications
for Internet governance throughout the world. When parties ask
us to overturn the outcomes of these processes, no matter how
well-intentioned the request, they are providing ``ammunition''
to other countries who would like to see governments take
control of the Internet.
Question 2. If the U.N. did take control or governments had greater
involvement, what impact would that have on American businesses and
citizens that utilize the Internet? What impact could it have on
Freedom of Speech?
Answer. The Affirmation of Commitments between the U.S. Department
of Commerce and ICANN sets out landmark commitments to ``(a) ensure
that decisions made related to the global technical coordination of the
DNS are made in the public interest and are accountable and
transparent; (b) preserve the security, stability and resiliency of the
DNS; (c) promote competition, consumer trust, and consumer choice in
the DNS marketplace; and (d) facilitate international participation in
DNS technical coordination.''
Some of the commitments that ICANN undertakes include ``commitments
to: (a) maintain the capacity and ability to coordinate the Internet
DNS at the overall level and to work for the maintenance of a single,
interoperable Internet; (b) remain a not for profit corporation,
headquartered in the United States of America with offices around the
world to meet the needs of a global community; and (c) to operate as a
multi-stakeholder, private sector led organization with input from the
public, for whose benefit ICANN shall in all events act.''
While the ICANN model is not perfect, it has shown to be a
powerful, dynamic model that is capable of reaching consensus positions
on extremely difficult issues. The multistakeholder model that is ICANN
is at risk if there is a heightened level of governmental involvement
above that exercised today through the Governmental Advisory Committee
(GAC). American businesses and citizens are very active in the ICANN
model, and continuing to remain accountable to them--along with the
global Internet community--is essential to ICANN's mission.
Moving to a U.N. model pushes those stakeholders outside government
to an inconsequential role. U.S. businesses would be reduced to
influencing the U.S. vote in a one country--one vote model.
Assistant Secretary Strickling and former Ambassador David Gross
have spoken eloquently on the negative impact of abandoning the
multistakeholder approach to Internet governance issues. In the
following excerpts, each describes proposals to give governmental
bodies such as the UN's International Telecommunications Union (ITU)
exclusive responsibility for Internet governance and standards
development. Assistant Secretary Strickling recently described \17\ the
proposals and their potential impact as follows:
---------------------------------------------------------------------------
\17\ Id.
Each challenge to the multistakeholder model has implications
---------------------------------------------------------------------------
for Internet governance throughout the world.
. . .
As many of you are aware, this is precisely the challenge we
face this December in Dubai, at the World Conference on
International Telecommunications (WCIT). This conference, which
is hosted by the International Telecommunication Union (ITU),
attracts delegates from the ITU's 193 member countries.
. . .
[S]ome countries have submitted proposals to make ITU standards
recommendations mandatory and thus enforceable by treaty, a
drastic departure from their current voluntary nature. Some
countries have proposed moving oversight of critical Internet
resources into the ITU, including naming and numbering
authority from multistakeholder institutions such as ICANN.
Many governments have called for the ITU to play a greater role
in regulating peering and termination charges in order to
compensate for lost telecommunication fees, the so called
``bypass phenomenon''. Also, in an effort to establish the ITU
as an operational authority on international cybersecurity,
some more authoritarian countries have proposed to include
cybersecurity and cybercrime provisions into the ITRs.
. . .
The challenge before us is clear. We must continue to make the
case that an Internet guided by the open and inclusive
processes as articulated in the OECD Policymaking Principles
will encourage the rapid economic growth and wealth creation
that the Internet has made possible.
It is incumbent upon us to convince other nations that
enshrining the Internet in an international treaty will not
accomplish these goals. The framework simply will not fit. An
Internet constrained by an international treaty will stifle the
innovators and entrepreneurs who are responsible for its
awesome growth. As FCC Commissioner Robert McDowell recently
said, ``upending the fundamentals of the multistakeholder model
is likely to Balkanize the Internet at best, suffocate it at
worst''. The states who seek to impose their control over the
Internet will only be further removed from its awesome
potential.
Former Ambassador David Gross described \18\ the proposals and
their potential impact as follows:
---------------------------------------------------------------------------
\18\ ``The 2012 World Conference On International
Telecommunications: Another Brewing Storm Over Potential UN Regulation
Of The Internet,'' November 2011 (available at http://
www.whoswholegal.com/news/features/article/29378/the-2012-world-
conference-international
-telecommunications-brewing-storm-potential-un-regulation-internet/).
See also, ``Governments vie for control of the Web,'' by Eliza Krigman,
POLITICO Pro, January 18, 2012 (available at https://
www.politicopro.com/story/tech/?id=8499; subscription required) (``The
end result [of adoption of some proposals at the WCIT], American
officials warn, would be an Internet more susceptible to censorship and
less potent as a tool to foster democracy.'')
Once again, many companies in the telecoms and information and
communications technology (ICT) sector are facing the spectre
of a United Nations agency (in this case the International
Telecommunication Union (ITU)) regulating critically important
aspects of the Internet as well as substantially expanding its
---------------------------------------------------------------------------
jurisdiction over the telecoms and ICT industries.
. . .
Some within the ITU and among its 193 member states would like
to see major changes to the treaty, particularly with respect
to the Internet as well as wireless, IP-based, and next-
generation networks, which have historically been mostly free
of intrusive economic and other regulation.
. . .
The WCIT could lead to new regulations governing how these
businesses are run and how such businesses may interact with
their customers, partners, and vendors, as well as how they can
innovate and provide new and improved services. Moreover,
because of the implicit attacks on established mechanisms of
Internet governance, the WCIT has the potential to destabilise
and politicise standardisation processes and the management of
the Internet architecture in a way that could also hinder
innovation and efficiency.
Growth of the Internet and expansion of the domain name system
Question 3. The Internet has been so amazingly beneficial to small
businesses because it allows them to globally expand their local
markets and enables them to compete with Fortune 100 companies because
the size of the computer screen is the same for a small business in
Bangor as it is for a multi-national corporation like Wal-mart. Small
businesses are the anchor to not only Maine's economy but to our
Nation's and the Internet has been invaluable to them.
Supporters of the expansion have stated it will bring new
competition and choice to the Internet space and allow the Internet to
continue to grow in the number of websites, content, applications, and
online services. It also presents businesses new models to harness the
boundless benefits of the Internet.
There have already been expansions to top level domains in the past
to accommodate for the growth of the Internet, with the intro of gTLDs
like .biz, .info, .museum, .mobi, etc.
If the Internet is going to continue to grow shouldn't the domain
name system?
Answer. Yes. Since 1998, ICANN has been working to execute on its
promise to facilitate competition in the Domain Name System while
protecting vital security, consumer and business interests. The New
gTLD Program has been carefully crafted over the past six years to
achieve this goal. As stated in my written testimony,
A founding mandate for ICANN, included within the United States
Government's ``White Paper on the Management of Internet Domain
Names and Addresses'',\19\ is to create competition in the
domain name market and specifically, to ``oversee policy for
determining the circumstances under which new TLDs are added to
the root system.'' \20\ The introduction of new gTLDs ``has
been a longstanding goal'' of the relationship between the
Department of Commerce and ICANN.\21\ The relationship formed
with the United States Government in 1998, and set out in the
many Memoranda of Understanding between the Department of
Commerce and ICANN, included a core objective to ``Define and
implement a predictable strategy for selecting new TLDs.'' \22\
This fundamental assumption that increasing the number of gTLDs
will increase competition resulted in the House Committee on
Energy and Commerce initiating a 2001 hearing regarding the
potential detrimental effects to competition when ICANN
approved only seven of 200 applied-for TLDs in an earlier
application round. \23\
---------------------------------------------------------------------------
\19\ United States Department of Commerce, White Paper on the
Management of Internet Domain Names and Addresses (``White Paper''), at
http://www.ntia.doc.gov/ntiahome/domain
name/6_5_98dns.htm (June 6, 1998)
\20\ Id.
\21\ Testimony of Fiona Alexander, Associate Administrator,
National Telecommunications and Information Administration, June 4,
2009, before the Subcommittee on Communications, Technology, and the
Internet, Committee on Energy and Commerce, United States House of
Representatives, available at http://www.ntia.doc.gov/speechtestimony/
2009/testimony-associate
-administrator-fiona-alexander-issues-concerning-internet-co.
\22\ See, e.g., Amendment 6 to Memorandum of Understanding Between
the U.S. Department of Commerce and The Internet Corporation For
Assigned Names And Numbers, at http://www.ntia.doc.gov/ntiahome/
domainname/agreements/amendment6_09162003.htm (Sept. 16, 2003).
\23\ See Transcript of February 8, 2001 Hearing before the
Subcommittee on Telecommunications and the Internet of the Committee on
Energy and Commerce, House of Representatives, On Hundred Seventh
Congress, First Session, available at http://archives.energycommerce
.house.gov/reparchives/107/hearings/02082001Hearing37/print.htm (``some
view ICANN's approval of only a limited number of names as thwarting
competition'').
Today, the DNS is continues to grow. The next billion Internet
users will be from outside the U.S. but their participation represents
opportunity for all businesses and communities. Since 2010, 30 new
country code top-level domains in non-Latin scripts have been added to
the DNS. These internationalized domain names, or IDN ccTLDs, help
bring the Internet to the next billion people. We've seen innovation in
the business models for existing country code TLDs, such as .CO
(Colombia) and .ME (Macedonia) to take advantage of commercial
opportunities waiting in the U.S. and beyond. But only TLDs introduced
under the New gTLD Program will provide the significant, mandatory
protections I describe in my testimony. The introduction of the New
gTLD Program is therefore not just fulfilling a mandate to add
competition through the introduction of more TLDs, but also represents
the creation of a new, more secure baseline for the expansion of the
Domain Name System.
White Paper
Question 4. In the ``White Paper,'' which was released in 1998 and
led to the formation of ICANN is competition, has as one of its core
principles is competition--that competition and consumer choice should
drive the management of the Internet because they will lower costs,
promote innovation, encourage diversity, and enhance user choice and
satisfaction.
Comments in the White Paper \24\ on the issue of new generic top
level domains showed ``very strong support for limiting government
involvement during the transition period on the matter of adding new
gTLDs. Specifically, most commenters--both U.S. and non-U.S.--suggested
that it would be more appropriate for the new, globally representative,
corporation to decide these issues once it is up and running.'' Also,
commenters noted that ``there are no artificial or arbitrary limits in
other media on the number of places in which trademark holders must
defend against dilution.''
---------------------------------------------------------------------------
\24\ http://www.ntia.doc.gov/federal-register-notice/1998/
statement-policy-management-internet
-names-and-addresses.
---------------------------------------------------------------------------
Isn't the expansion of gTLD a form of competition, where .hotels or
.cars could compete against .com or .biz? If not, why?
Answer. Yes. In response to your Question 3 under the ``Growth of
the Internet and expansion of the domain name system'' heading, it is
noted that the introduction of the New gTLD Program is expected to
fulfill ICANN's mandate to introduce competition in the DNS. ICANN does
not know all of the potential business models that are contemplated,
nor is ICANN in a position to judge or foretell which business models
may succeed. That is the role of the market. ICANN's role is to allow
for the creation of opportunities in the DNS for marketplace
participants to compete, to innovate and to offer users new products
and services.
For at least the past two years, future applicants have attended
ICANN meetings, passing out marketing materials with their ``dot-
NEWDOMAIN'' prominently displayed. Consulting businesses to advise
applicants have arisen. Over 120 persons or entities have publicly
announced their intention to apply for new gTLDs. Nearly 90 declared
applicants have active websites marketing their new gTLD idea proposing
all types of gTLDs--city names, community ideas, branding opportunities
for internationally known corporations and others.
There are other forms of competition in addition to new gTLDs, for
example, the introduction of services provided by Twitter and Facebook,
and also the increased use of ``apps.'' However, one form of
introducing competition should not foreclose another. The formation of
ICANN in 1998 and the potential introduction of new gTLDs have been
clearly described as an opportunity for increasing competition, choice
and innovation. That introduction has taken place in a careful way,
including two limited rounds in 2000 and 2004, the limited introduction
of IDNs starting in 2010.
There is tremendous opportunity for innovation, competition and
consumer choice within the New gTLD Program.
Question 5. Several commenters also stated ``the market will decide
which TLDs succeed and which do not.'' What is wrong with allowing the
market to continue to decide with new gTLDs from the expansion?
Answer. Allowing the market to determine the success of new gTLD
offerings is one of the fundamental tenets of the introduction of the
New gTLD Program. One of the policy recommendations that serves as the
basis for this program is that the introduction of TLDs should only be
limited by round, and not by subjective and arbitrary factors. In
addition, the economic studies, described in response to Senator
Warner's Question 5, support that competition results from the opening
of markets--not by imposing artificial limitations such as number or
type.
One of those economists, Dr. Dennis Carlton, Deputy Assistant
Attorney General for Economic Analysis, Antitrust Division, U.S.
Department of Justice from October 2006 through January 2008,
explained: ``ICANN's plan to introduce new gTLDs is likely to benefit
consumers by facilitating entry which would be expected both to bring
new services to consumers and mitigate market power associated with
.com and other major TLDs and to increase innovation.'' \25\ Delay will
inhibit competition in the use of generic, non-trademarked terms, and
runs counter to the generally accepted view that market entry benefits
consumers by expanding output and lowering price. Potential innovations
in the new gTLD namespace will be stifled if limitations to entry are
imposed, which would ``essentially freeze the number of TLDs fifteen
years after the first commercial development of the Internet.'' \26\
---------------------------------------------------------------------------
\25\ Dr. Dennis Carlton, Report Regarding ICANN's Proposed
Mechanism for Introducing New gTLDs, at http://www.icann.org/en/topics/
new-gtlds/carlton-re-proposed-mechanism-05jun09-
en.pdf at paragraph 23.
\26\ Id.
---------------------------------------------------------------------------
The introduction of new gTLDs will also serve to alleviate issues
in existing market conditions: concentration within some existing
registries, most generic strings unavailable, and those that trade on
the value of the current marketplace holding portfolios based upon the
value of current .COM names.\27\
---------------------------------------------------------------------------
\27\ Katz/Rosston Phase II, at paragraphs 75-76.
---------------------------------------------------------------------------
While the market should decide which TLDs succeed and which do not,
we understand the valid concerns associated with registry failure and
ICANN has put into place consumer interest protections.
Among other safeguards, ICANN has in place provision for an
``Emergency Back End Registry Provider'' to take over operations for a
failed registry to ensure the interests of registrants are protected
and domain names continue to resolve.
The issue of registry failure has been considered in detail through
the work on the New gTLD Program. First, the extensive evaluation
process will help assure that only companies that meet the stringent
financial requirements are able to operate new TLDs. Of course, this
pre-emptive evaluation process may not fully protect against future
registry failure, and ICANN has included multiple additional
protections within the New gTLD Program to address potential failure.
During the application process, applicants are required to provide
evidence that critical functions of the registry will continue to be
performed even if the registry fails. This includes a requirement that
the costs for maintaining critical registry functions over an extended
period of time (between three to five years) be estimated as part of
the application process, and registries must have available a
Continuing Operations Instrument (funded through a letter of credit or
an escrow account) that ICANN may invoke to pay an third party to
maintain the critical registry functions.
ICANN is currently working to identify the entity that will serve
as an Emergency Back End Registry Operator (EBERO), which will step in
to perform the critical registry functions during the three-to-five
year period. These provisions are expected to protect registrants
against the risk of immediate registry failure.
To facilitate any need for emergency transition, ICANN also
requires the escrow of registry data that the EBERO would be allowed to
access for the purpose of providing the registry services.
In the event of a termination of a Registry Agreement, and in
consultation with the registry operator, ICANN maintains the right to
determine whether to transition the operation of a TLD to a successor
registry operator as is necessary to protect the public interest.
Transition is not required, however, if a registry operator's use of
the TLD is for its own exclusive use and all names are registered and
maintained by the registry operator.
ICANN's past experience with its 2000 and 2004 pilot programs on
the introduction of new gTLDs, described in response to Senator
McCaskill's Question 2, represent limited expansion. ICANN learned
valuable lessons from each of these rounds: First, new TLDs can safely
be added to the DNS. Second, the imposition of artificial restrictions
on the rounds, such as the numerical restriction imposed in 2000 and
the type-restriction imposed in 2004 place ICANN in the position of
picking winners and losers, as opposed to fulfilling its mission of
facilitating competition in the DNS. Artificial restrictions also
create incentives for applicants to work to fit their TLD ideas into
categories that may not be a true fit.
Today's New gTLD Program instead allows for competition tempered by
the suite of new protections for trademark owners and Internet users.
Choice and competition will be introduced in a more secure environment
than ever before.
Question 6. If commenters are correct that ``there are no
artificial or arbitrary limits in other media on the number of places
in which trademark holders must defend against dilution'' then why
should we place ``artificial or arbitrary'' limits on the Internet?
Answer. Today's New gTLD Program is balanced so as not to impose
artificial or arbitrary limits of any kind. Limits on the Program were
created to safeguard specific, important interests, for example,
property rights and community interests. The mandatory rights
protection mechanisms in place for the New gTLD Program are broader
than the protections offered to trademark holders in the rollout of any
other media of which I am aware. However, the rights protection
mechanisms were carefully crafted, balancing the input of trademark
experts against third parties with legitimate rights to register domain
names. To that end, including the suite of trademark protections in the
New gTLD Program is not an ``artificial or arbitrary'' limit on the
Internet and ICANN is committed to enforce the mandatory requirements.
The creation of trademark protections is also supported by the economic
analysis described in response to Senator Warner's Question 5.
The protections that exist are careful and balanced. Further, ICANN
has agreed to undertake studies of a post-launch review on the
feasibility of enhancing both the scope of the words registered within
the Trademark Clearinghouse and the length of the Trademark Claims
notification process. If further protection is warranted and feasible,
these enhanced protections could be included in future gTLD application
rounds. Imposition of drastic limitations--and creating rights that are
neither justified on the basis of experience nor recognized in other
areas--could impair the ability for competition to flourish in new
gTLDs.
Expansion of Internet Addresses
Question 7. The Internet has revolutionized some many different
areas of society and the economy. The innovation, adoption, and sheer
size of the Internet are simply unparalleled. The Internet currently
comprises of approximately 2 billion users and more than five billion
devices. Cisco estimates there will be more than 50 billion Internet
connected devices by 2020.
However, we have for the most part exhausted the existing pool of
Internet address--IPv4 provides for approximately 4.3 billion
addresses. The shortage has been the driving factor in creating and
adopting several new technologies as well as new and larger addressing
system, known as IP version 6. This migration from a 32-bit addressing
space to a 128-bit addressing, will provide 340 trillion, trillion,
trillion separate addresses--enough for every human bring to use many
trillions of address. With IPv6, there will be approximately 670,000 IP
addresses for every squared nanometer of the earth's service. To put
that into perspective, a human hair is 100,000 nanometers wide.
However, the implementation of IPv6 has been somewhat slow. Last
year, I read only about 20 percent of the Internet was IPv6 compatible
and while a recent survey shows adoption of IPv6 grew by 1,900 percent
over the past 12 months that results in only about 25 percent of .com,
.net, and .org Internet subdomains.
What is the status of the migration to IPv6 and what will it mean
for Internet users and businesses, domestic and globally?
Answer. While universal IPv6 deployment is likely to obviate the
need for IPv4 deployments in the long-term, the short and medium-term
is likely to see Internet networks running both protocols side-by-side
for years to come. As such, migration away from IPv4 is a less
important goal than the widespread deployment of IPv6.
The status of IPv6 deployment can be measured both quantitatively
and qualitatively. Quantitatively, over 7,500 IPv6 address blocks had
been allocated to network operators around the globe by the end of
September 2011 \28\ and by January 2012, the American Registry for
Internet Numbers (ARIN) allocated IPv6 address blocks to over 2,300
networks in the USA \29\ alone. Almost 6,700 \30\ IPv6 networks were
publicly routed on the Internet in January 2012, which is approximately
17 percent \31\ of Internet networks.
---------------------------------------------------------------------------
\28\ http://www.nro.net/wp-content/uploads/nro_stats_2011_q3.pdf.
\29\ ftp://ftp.arin.net/pub/stats/arin/
\30\ http://www.cidr-report.org/v6/as6447/index.html.
\31\ http://www.cidr-report.org/as2.0/.
---------------------------------------------------------------------------
Qualitatively, IPv6 deployments have undergone testing and are now
being made as part of ISPs and content providers' standard services.
World IPv6 Day \32\ in June 2011 was a coordinated test of IPv6 by
including Google, Facebook, Yahoo!, Akamai and Limelight Networks,
together with over 1,000 website operators. It was a success, and June
6, 2012 will see the World IPv6 Launch, in which major ISPs, home
networking equipment manufacturers and web companies around the world
are coming together to permanently enable IPv6 for their products and
services.
---------------------------------------------------------------------------
\32\ http://www.worldipv6day.org/.
---------------------------------------------------------------------------
While June's World IPv6 Launch is not a flag day, the combination
of successful testing and market leading deployment is expected to
provide an incentive to other Internet businesses and help raise
awareness with non-Internet businesses. Some businesses may note that
they need to update systems to allow for IPv6 deployment, though
regular updating of systems to meet with technological advances is a
normal cost of business. However, successful IPv6 deployment should be
seamless for Internet users, whose computer operating systems have been
IPv6 capable for some years already.
Question 8. Is there anything governments can do to encourage
faster adoption of IPv6 as well as increase awareness to businesses and
citizens about the migration?
Answer. From ICANN's perspective, public support for adoption of
IPv6 can help increase awareness of the deployment of IPv6, as well as
provide incentives for Internet-related businesses to engineer products
that are capable of IPv6 deployment. For example, in 2005, the United
States Office of Management and Budget (OMB) mandated \33\ that Federal
agencies initiate the transition to IPv6. The target readiness date was
June 2008. In September 2010 the OMB released a further memorandum \34\
setting out additional deadlines for the Federal IPv6 transition. Other
national governments have introduced similar roadmaps. Examples include
Australia's 2009 Strategy for the Implementation of IPv6 in Australian
Government Agencies \35\ and the European Commission's Action Plan for
the deployment of Internet Protocol version 6 (IPv6) in Europe.\36\ The
latter has guided deployment in governments throughout Europe,
including Germany.\37\
---------------------------------------------------------------------------
\33\ http://www.cio.gov/documents/Transition_Planning_for_IPv6.pdf.
\34\ http://www.cio.gov/Documents/IPv6MemoFINAL.pdf.
\35\ http://www.finance.gov.au/e-government/infrastructure/docs/
Endorsed_Strategy_for_
the_Transition_to_IPv6_for_Australian_Government_agencies.pdf.
\36\ http://ec.europa.eu/information_society/policy/ipv6/docs/
european_day/communication_final_27052008_en.pdf.
\37\ http://ripe58.ripe.net/content/presentations/ipv6-in-
germany.pdf.
---------------------------------------------------------------------------
Mandates such as OMB's 2005 timeline have helped establish demand
for IPv6 feature sets, as customers now require those features in
equipment purchases. As such, governments have contributed to the
success of World IPv6 Day in 2011, which readied the stage for this
year's World IPv6 Launch.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Angela Williams
United Nations Model
Question 1. There has been a growing contingency of other countries
critical of the ICANN multi-stakeholder model and about the US'
involvement and influence with ICANN. Some governments, not necessarily
friendly to the U.S., are seeking to increase their power over the
Internet and its governance.
Russia and China (with Tajikistan and Uzbekistan) have proposed to
the United Nations an Internet ``Code of Conduct,'' which a senior
State Department official stated ``they seek to justify the
establishment of sovereign government control over Internet resources
and over freedom of expression in order to maintain the security of
their state.\1\'' Even Russian Prime Minister Vladimir Putin remarked
recently his desire of ``establishing international control over the
Internet using the monitoring and supervisory capabilities of the
International Telecommunication Union (ITU).\2\''
---------------------------------------------------------------------------
\1\ http://www.huffingtonpost.com/2011/09/27/russia-china-internet-
control_n_984223.html.
\2\ http://premier.gov.ru/eng/events/news/15601/.
---------------------------------------------------------------------------
The other proposal by India, Brazil and South Africa calls for the
creation of a new body within the United Nations to oversee Internet
policy. As a result, ICANN as well as the Internet Governance Forum
(IGF) could be significantly marginalized or hijacked by this new UN
entity.
These proposals seem to be in direct conflict with our Nation's
effort to privatize the Internet through transferring the authority of
the DNS to the private sector and for the Internet governance model to
be private-sector led.
If the U.S. Government followed the advice to unilaterally delay
the gTLD expansion, what do you believe the impact would be globally
and do you believe this would fan the flames of anti-U.S. government
sentiment with respect to Internet governance? Could it give more
momentum to other governments' calls to have the United Nations assert
oversight over ICANN or replace it altogether?
Answer. The YMCA of the USA (``Y-USA'') did not enter testimony
requesting that ICANN delay its new gTLD Program. Our testimony
primarily focused on the financial impact the new gTLD Program would
have on the not-for-profit sector. It is hard for us to predict what
the global impact would be or whether it would give other countries
momentum to call for the United Nation's involvement in Internet
governance if the new gTLD Program were to be delayed. Nevertheless,
ICANN's irresponsible launch of the new gTLD Program with an
implementation plan that does not adequately address consumer
protection or the financial burdens for our organizations could have a
negative impact on the not-for-profit sector. Further, we suspect that
anti-government sentiments will continue to be prevalent regardless of
ICANN's decision.
Question 2. If the U.N. did take control or governments had greater
involvement, what impact would that have on American businesses and
citizens that utilizes the Internet? What impact could it have on
Freedom of Speech?
Answer. Based on U.S. laws, American citizens, companies and not-
for-profit organizations are able to fully engage in ecommerce,
humanitarian and educational pursuits and commentary and free
expression on the Internet. The Y-USA does not believe that ICANN's new
gTLD Program will affect these protections. Furthermore, the Y-USA is
unaware of any data, studies or research that analyze the potential
effect the United Nations or government would have on businesses or
citizens should they take control of the Internet.
Growth of the Internet and expansion of the domain name system
Question 3. The Internet has been so amazingly beneficial to small
businesses because it allows them to globally expand their local
markets and enables them to compete with Fortune 100 companies because
the size of the computer screen is the same for a small business in
Bangor as it is for a multi-national corporation like Wal-mart. [sic]
Small businesses are the anchor to not only Maine's economy but to our
Nation's and the Internet has been invaluable to them.
Supporters of the expansion have stated it will bring new
competition and choice to the Internet space and allow the Internet to
continue to grow in the number of websites, content, applications, and
online services. It also presents businesses new models to harness the
boundless benefits of the Internet.
There have already been expansions to top level domains in the past
to accommodate for the growth of the Internet, with the intro of gTLDs
like .biz, .info, .museum, .mobi, etc. Given that there have already
been two expansions of top level domains, it seems difficult to simply
state that there shouldn't be any additional top-level domains for the
Internet. The Internet is all about expansion and innovation, after
all. Are you really saying we already have all the top-level domains
the Internet will ever need?
Answer. Y-USA did not enter testimony suggesting that the Internet
should not be expanded. Again, our testimony primarily focused on the
financial impact the new gTLD Program would have on the not-for-profit
sector. It is our assertion that not-for-profits (for those that can
afford to) should not be required to use the humanitarian contributions
it receives to (1) change its business model to operate as a domain
name registry; and/or (2) file countless defensive top level and second
level domain name registrations to protect its intellectual property
against cyber squatters seeking profit off their names.
Question 4. If the Internet is going to continue to grow shouldn't
the domain name system?
Answer. The domain name system can grow, but in a way that protects
businesses, and affords the not-for-profit sector meaningful input and
access as global stakeholders.
Question 5. Putting aside your request for delay, are there
specific improvements you would recommend in the gTLD program that
would address your concerns?
Answer. Y-USA testified as a not-for-profit organization and as a
member of ICANN's newly-formed Not-for-Profit Operational Concerns
Constituency (``NPOC''). We did not request that the new gTLD Program
be delayed. Instead we offered the following recommendations:
That verified not-for-profit organizations be permitted to
exempt their trademarks from any other applicant in the new
gTLD program at no cost, or if that is not possible, then at a
drastically reduced fee;
That the mechanisms for trademark protection be
significantly strengthened, with the ability to proactively
protect trademark owners before any application is accepted;
and
That the costs to participate in the new gTLD program for
verified not-for-profit organizations be eliminated.
White Paper
Question 6. In the ``White Paper,'' which was released in 1998 and
led to the formation of ICANN is competition, has as one of its core
principles is competition--that competition and consumer choice should
drive the management of the Internet because they will lower costs,
promote innovation, encourage diversity, and enhance user choice and
satisfaction.
Comments in the White Paper \3\ on the issue of new generic top
level domains showed ``very strong support for limiting government
involvement during the transition period on the matter of adding new
gTLDs. Specifically, most commenters--both U.S. and non-U.S.--suggested
that it would be more appropriate for the new, globally representative,
corporation to decide these issues once it is up and running.'' Also,
commenters noted that ``there are no artificial or arbitrary limits in
other media on the number of places in which trademark holders must
defend against dilution.'' Isn't the expansion of gTLD a form of
competition, where .hotels or .cars could compete against .com or .biz?
If not, why?
---------------------------------------------------------------------------
\3\ http://www.ntia.doc.gov/federal-register-notice/1998/statement-
policy-management-internet-names-and-addresses.
---------------------------------------------------------------------------
Answer. Y-USA is of the opinion that expansion of the gTLD program
could be a form of healthy competition if there is a demonstrated need
for the expansion and an articulated rationale supporting the scope of
the expansion (e.g., the number of new TLDs to be introduced). ICANN
has estimated 200-1000 new gTLDs within the first launch phase.
Rollouts of new gTLDs such as .biz, .mobi, etc., were staggered. Y-USA
and we suspect many other not-for-profits and businesses, filed
defensive domain name registrations during these expansions, rather
than using the new domain names to support an innovative business plan,
or to offer new content or services for our communities. For example, a
new gTLD for ``.xxx'' was recently launched for the adult entertainment
industry. We filed a defensive registration for ``ymca.xxx'' at the
cost of $300. Should there be a need for our organization and/or other
not-for-profits organizations to file hundreds of defensive
registrations with no plans to actually use them or incorporate them in
our business plans, the costs and impact to do so could be staggering.
Our sector not only prefers to, but must, use our monies to provide
critical services to our communities.
Question 7. As stated the white paper hightlighted that ``most
commenters--both U.S. and non-U.S.--suggested that it would be more
appropriate for the new, globally representative, corporation to decide
these issues once it is up and running.'' What has happened since the
inception of ICANN that warrants the United States Government from
ignoring these initially comments from U.S. and non-U.S. stakeholders
that ICANN should decide the issue of new gTLDs?
Answer. Y-USA is not well versed in the nuances of the evolution of
Internet governance.
Question 8. Several commenters also stated ``the market will decide
which TLDs succeed and which do not.'' What is wrong with allowing the
market to continue to decide with new gTLDs from the expansion?
Answer. Y-USA is in favor of the market deciding which new gTLDs
will succeed. However, what concerns us are the costs for not-for-
profits to participate in the expansion (including defending its
intellectual property rights) of the Internet with humanitarian monies
donated for our worthy causes. Unfortunately, not-for profit
organizations will have to allocate financial and human resources to
defend their brand and intellectual property early in the process and
long before the market determines whether these new gTLDs are
successful. Our sector not only prefers to, but must, use our monies to
provide critical services to our communities.
Question 9. If commenters are correct that ``there are no
artificial or arbitrary limits in other media on the number of places
in which trademark holders must defend against dilution'' then why
should we place ``artificial or arbitrary'' limits on the Internet?
Answer. Y-USA does not favor restricting or limiting the internet.
Again, what concerns us is the costs for not-for-profits to participate
in the expansion (and defend its brand and intellectual property
rights) of the Internet with humanitarian monies donated for our worthy
causes. Unfortunately, expansion without limits will place not-for
profit organizations in the position to allocate financial and human
resources to defend their brand and intellectual property, well before
these new top level domains are proven successful. For some new
domains, if history is a predictor, most of the registrations for
second level domain names will come from companies and organizations
defensively registering their names.
______
Response to Written Question Submitted by Hon. Maria Cantwell to
Daniel L. Jaffe
Cracking down on rogue websites
Question. Mr. Jaffe, do you believe that the increase in top level
domains combined with all the requirements ICANN is putting in place
will make its easier, more difficult, or not change the ability of U.S
authorities to crack down on Internet sites--to use the phase--that are
dedicated to infringing activity?
Answer: We believe an unlimited expansion of the TLDs would make it
much more difficult for U.S. authorities to crack down on ``rogue''
Internet sites. This is a serious challenge in today's environment with
22 TLDs so an unlimited expansion would increase the problem
exponentially. In 2009, an international coalition of law enforcement
agencies including the U.S. Department of Justice and the FBI issued a
set of 12 specific law enforcement recommendations to ICANN. None of
those recommendations has been adopted. In a very detailed letter to
ICANN dated December 16, 2011, the Federal Trade Commission (FTC)
stated that the TLD expansion presented a ``dramatically increased
opportunity for consumer fraud, distribution of malware, and
proliferation of other malicious activity. . .'' The Commission made
five specific recommendations to ICANN to address before any new TLDs
are approved. We believe it is critical that ICANN fully implement the
recommendations of the FTC and other law enforcement agencies from
around the world.
______
Response to Written Question Submitted by Hon. Claire McCaskill to
Daniel L. Jaffe
Question. I recognize that ICANN has put a tremendous amount of
work and study into the planned expansion of top-level domain names.
There have been a number of economic studies, dozens of comment periods
and seven versions of the Applicant Guidebook before the final one was
issued. ICANN clearly views the expansion of gTLDs as vital to the
growth and viability of the Internet.
Given how much time, effort and study has been put into this
decision, I find it disturbing that there is still so much dispute
about expansion. There is clearly a lack of consensus about these
changes in the business and non-profit industries as well as concerns
from law enforcement. This is not a decision to be taken lightly and I
believe there needs to be better agreement on the outstanding issues
from all interested parties.
Both of you have very differing opinions about the implications of
the gTLD expansion. Why has it taken this long to get this out in the
open?
Mr. Jaffe, there was an extensive comment period before the
guidelines were issued, which I'm sure you were aware of--did you and
other industries fully participate in the process? Do you disagree with
the economic studies that ICANN has cited saying this would increase
competition and innovation? If so, why?
Mr. Fritz, how much weight was given to the concerns raised by Mr.
Jaffe and others with his viewpoints? The danger of increased copyright
infringement appears to be a legitimate issue--do you agree?
Answer. ANA and many other business groups and companies have been
actively participating in the ICANN process for several years. We filed
detailed comments with ICANN in 2008 and 2009 expressing our serious
concerns about the unlimited TLD expansion. Many companies have
attended the numerous meetings around the world of the ICANN board to
express similar concerns. Unfortunately, the strong objections raised
by ANA and a very broad cross-section of the international business
community have largely fallen on deaf ears with ICANN. We seriously
challenge the economic analysis that has been put forward by ICANN. An
unlimited expansion of the TLDs will cost the business community
billions of dollars. The only voices speaking in favor of the expansion
are registrars, registries and others who will directly profit from the
roll-out. The broader Internet business community, including the 161
members of the Coalition for Responsible Internet Domain Oversight
(CRIDO) is strongly opposed to the current program.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Daniel L. Jaffe
United Nations Model
Question 1. There has been a growing contingency of other countries
critical of the ICANN multi-stakeholder model and about the US'
involvement and influence with ICANN. Some governments, not necessarily
friendly to the U.S., are seeking to increase their power over the
Internet and its governance.
Russia and China (with Tajikistan and Uzbekistan) have proposed to
the United Nations an Internet ``Code of Conduct,'' which a senior
State Department official stated ``they seek to justify the
establishment of sovereign government control over Internet resources
and over freedom of expression in order to maintain the security of
their state.\1\'' Even Russian Prime Minister Vladimir Putin remarked
recently his desire of ``establishing international control over the
Internet using the monitoring and supervisory capabilities of the
International Telecommunication Union (ITU).\2\''
---------------------------------------------------------------------------
\1\ http://www.huffingtonpost.com/2011/09/27/russia-china-internet-
control_n_984223.html.
\2\ http://premier.gov.ru/eng/events/news/15601/.
---------------------------------------------------------------------------
The other proposal by India, Brazil and South Africa calls for the
creation of a new body within the United Nations to oversee Internet
policy. As a result, ICANN as well as the Internet Governance Forum
(IGF) could be significantly marginalized or hijacked by this new UN
entity.
These proposals seem to be in direct conflict with our Nation's
effort to privatize the Internet through transferring the authority of
the DNS to the private sector and for the Internet governance model to
be private-sector led.
If the U.S. Government followed the advice to unilaterally delay
the gTLD expansion, what do you believe the impact would be globally
and do you believe this would fan the flames of anti-U.S. government
sentiment with respect to Internet governance? Could it give more
momentum to other governments' calls to have the United Nations assert
oversight over ICANN or replace it altogether?
Answer. We do not believe that a delay in the TLD expansion or a
pilot project involving a smaller number of new TLDs would have
negative implications for the role of ICANN in Internet governance.
Indeed, given the serious concerns that have been expressed by the
international law enforcement community, more than 30 IGOs and a broad
cross-section of the international business community, it would be a
reckless experiment for ICANN to proceed full speed ahead with the
unlimited expansion. A failed and costly program that hurts both
consumers and businesses could drastically undermine the foundations of
ICANN and its supervisory role over TLDs.
Question 2. If the U.N. did take control or governments had greater
involvement, what impact would that have on American businesses and
citizens that utilize the Internet? What impact could it have on
Freedom of Speech?
Answer. We do not advocate that the U.S. government or any other
government control the Internet. We also do not seek the abolition of
ICANN. A private sector led multi-stakeholder process that truly
achieves consensus will result in an online environment that encourages
creativity and innovation for all the citizens of the world.
Unfortunately, we do not believe that these goals have been fostered by
ICANN's current TLD program.
Self-Regulation vs. Government Intervention
Question 3. In a letter and petition, submitted by the Association
of National Advertisers and other organizations to Commerce Secretary
Bryson, on November 10, 2011, you express your ``strong opposition to
the new Top Level Domain (TLD) program that was approved by the
Internet Corporation for Assigned Names and Numbers (ICANN) on June 20,
2011.'' The petition then calls for the Department of Commerce and NTIA
to use all of its best efforts to persuade ICANN to postpone the
opening of the Top Level Domain application window. The ANA and the
other petitioners are basically calling for the government
intervention.
However, in comments the filed, in June 2010, with respect to the
Department of Commerce's Notice of Inquiry on information privacy and
innovation in the Internet economy, ANA and some of the same
organizations that voiced for government intervention on ICANN, praised
the virtues of self-regulation and that ``existing and emerging robust
self-regulatory principles address privacy concerns while ensuring that
the Internet can thrive, thereby benefiting consumers and the U.S.
economy.'' The petition went on to state that self-regulation ensures
``the marketplace is not stifled or smothered by overreaching and rigid
regulation.'' So you all are warning against government intervention
with respect to online privacy.
These petitions seem in direct conflict with each other--on one
issue you want the government to intervene but on another you don't.
Can you provide clarity as to why this is because it doesn't seem
consistent?
Answer. We do not believe that industry self-regulation and
reasonable regulation by the government in certain areas are mutually
exclusive. For example, in the privacy arena, we have always agreed
that there are certain sensitive areas (health and financial
information and children) where there is a legitimate interest for
reasonable government regulation. Thus, we have supported the privacy
regimes of Gramm-Leach-Bliley, HIPPA and the Children's Online Privacy
Protection Act (COPPA). However, for non-sensitive information, we
continue to believe that the privacy interests of consumers can be best
protected through strong, effective industry self-regulation. For that
reason, we were one of the founding partners of the Self-Regulatory
Program for Online Behavioral Advertising (OBA).
With regard to ICANN, we have never sought direct government
intervention by the Department of Commerce. We support the role that
ICANN plays as part of a multi-stakeholder approach. However, it is
critical that the various requirements regarding the public interest,
consumer trust and public benefits that are contained in the
Affirmation of Commitments between ICANN and the Department of Commerce
are being adequately fulfilled. ICANN was provided authority over key
functions of the Internet under the Affirmation of Commitments with the
Department of Commerce. If ICANN fails to uphold these commitments,
then the DOC must provide assurance that the legitimate concerns of
businesses and consumers will be met.
Question 4. Do you believe this intervention you request is counter
to the ``Framework for Global Electronic Commerce'' working paper,
which its first principle is ``the private sector should lead'' and
that ``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?''
This intervention also seems in direct conflict with the Commerce
Department's Commitments in the Affirmation of Commitments (AoC), where
it is written the Commerce Department ``affirms its commitment to a
multi-stakeholder, private sector led, bottom-up policy development
model.'' Could Commerce's involvement in delaying the gTLD expansion be
perceived as reneging on this commitment within the AoC?
Answer. We do not believe that our request to the Department of
Commerce is inconsistent with either the ``Framework for Global
Electronic Commerce'' or the Affirmation of Commitments. We do not
advocate that the U.S. government or any government control the
Internet. However, that does not mean that the Commerce Department has
no role to play in the broad governance of the Internet. Indeed, as a
member of ICANN's Governmental Advisory Committee (GAC), the Commerce
Department is a vital part of the multi-stakeholder global community.
In addition, ICANN made a number of specific promises in the
Affirmation of Commitments between ICANN and the NTIA, in exchange for
the considerable power to oversee the Internet that was delegated to
ICANN by the U.S. government. It has become very clear over the last
several months that the process followed by ICANN on the TLD proposal
has not achieved consensus among all of the stakeholders. If ICANN is
to maintain the trust in its ability to act for the public benefit that
is critical to its continued success as a private, not-for-profit
Internet governance body, the Commerce Department has a vital role to
play to protect the interest of American consumers and businesses.
Growth of the Internet and expansion of the domain name system
Question 5. The Internet has been so amazingly beneficial to small
businesses because it allows them to globally expand their local
markets and enables them to compete with Fortune 100 companies because
the size of the computer screen is the same for a small business in
Bangor as it is for a multi-national corporation like Wall-mart. Small
businesses are the anchor to not only Maine's economy but to our
Nation's and the Internet has been invaluable to them.
Supporters of the expansion have stated it will bring new
competition and choice to the Internet space and allow the Internet to
continue to grow in the number of websites, content, applications, and
online services. It also presents businesses new models to harness the
boundless benefits of the Internet.
There have already been expansions to top level domains in the past
to accommodate for the growth of the Internet, with the intro of gTLDs
like .biz, .info, .museum, .mobi, etc.
Given that there have already been two expansions of top level
domains, it seems difficult to simply state that there shouldn't be any
additional top-level domains for the Internet. The Internet is all
about expansion and innovation, after all. Are you really saying we
already have all the top-level domains the Internet will ever need?
Answer. We have never said that there is something sacrosanct about
maintaining the existing 22 TLDs unaltered. However, it has become
clear over the past several months that there is serious opposition to
the unlimited expansion that ICANN has proposed. That opposition comes
not just from the business community, but also from law enforcement and
consumer protections agencies, IGOs, and the non-profit community.
Furthermore, the proposed added protections that ICANN states will
provide protection for the Top Level Domain system have never been
tested in a pilot project. It is reckless to have such a broad
expansion of the Domain Name System without this more limited test.
Question 6. If the Internet is going to continue to grow shouldn't
the domain name system?
Answer. There is no scarcity of space within the existing domain
name system, so the ICANN program seems to be a solution in search of a
problem. Most of the current TLD names are minimally used, but brand
owners nevertheless spend millions of dollars policing them to protect
against trademark dilution, cybersquatting and the online sale of
pirated or counterfeit products. Those costs and dangers would expand
exponentially under the ICANN program. The broad Internet business
community is not calling for this unlimited expansion. The expansion of
domains should be based on a careful analysis of costs and benefits,
and we do not believe that ICANN's analysis has been adequate to date.
Question 7. Putting aside your request for delay, are there
specific improvements you would recommend in the gTLD program that
would address your concerns?
Answer. In a very detailed letter to ICANN dated December 16, 2011,
the Federal Trade Commission (FTC) stated that the TLD expansion
presented a ``dramatically increased opportunity for consumer fraud,
distribution of malware, and proliferation of other malicious activity.
. .'' The Commission made five specific recommendations for ICANN to
responsibly address before any new TLD applications are approved. The
FTC letter is available at: www.ftc.gov/os/closings/publicltrs/
111216letter-to-icann.pdf.
We believe it is critical that ICANN fully implements the consumer
protection recommendations of the FTC. ANA recently wrote to Assistant
Secretary Lawrence Strickling at the NTIA, urging the Commerce
Department to ensure that ICANN adopts those recommendations. We
believe it is critical that NTIA play a more proactive role in this
area by providing specific timetables and benchmarks for ICANN to meet
as well as specific consequences if they fall short. We also have
recommended a ``Do Not Sell'' list that would allow companies to
temporarily protect their trademarks from registration without paying
registration fees. A copy of our letter is attached for your
information.
White Paper
Question 8. In the ``White Paper,'' which was released in 1998 and
led to the formation of ICANN is competition, has as one of its core
principles is competition--that competition and consumer choice should
drive the management of the Internet because they will lower costs,
promote innovation, encourage diversity, and enhance user choice and
satisfaction.
Comments in the White Paper \3\ on the issue of new generic top
level domains showed ``very strong support for limiting government
involvement during the transition period on the matter of adding new
gTLDs. Specifically, most commenters--both U.S. and non-U.S.--suggested
that it would be more appropriate for the new, globally representative,
corporation to decide these issues once it is up and running.'' Also,
commenters noted that ``there are no artificial or arbitrary limits in
other media on the number of places in which trademark holders must
defend against dilution.''
---------------------------------------------------------------------------
\3\ http://www.ntia.doc.gov/federal-register-notice/1998/statement-
policy-management-internet-names-and-addresses.
---------------------------------------------------------------------------
Isn't the expansion of gTLD a form of competition, where .hotels or
.cars could compete against .com or .biz? If not, why?
Answer. ANA's member companies operate in very competitive markets
and strongly support free, fair and open competition. There may be
situations where individual companies or a specific industry (such as
the hotel or automobile industry) decide there are significant benefits
to be gained through new TLDs. However, that is not the case we have
with the current ICANN program. Rather than a targeted or limited
expansion based on specific demand from companies or industries or
consumers, ICANN has decided to embark on a veritable names rush, an
unlimited expansion that will impose enormous costs on brand owners.
Question 9. As stated the white paper hightlighted that ``most
commenters--both U.S. and non-U.S.--suggested that it would be more
appropriate for the new, globally representative, corporation to decide
these issues once it is up and running.'' What has happened since the
inception of ICANN that warrants the United States Government from
ignoring these initially comments from U.S. and non-U.S. stakeholders
that ICANN should decide the issue of new gTLDs?
Answer. We agree that the decision about expanding TLDs must
ultimately be made by ICANN. However, the decision-making process must
be fair, open and impartial and consistent with the promises ICANN has
made with the Department of Commerce in the Affirmation of Commitments.
ICANN has been considering this program for several years, but has
largely ignored the serious concerns expressed by the business
community as well as the international law enforcement community during
that time period. Even now, after two Congressional hearings and a
growing chorus of opposition from across the Internet community,
ICANN's response is ``pay now and trust us to make changes later.''
There must be some mechanism to hold ICANN accountable and NTIA and the
other members of the Governmental Advisory Committee must occupy that
role.
Question 10. Several commenters also stated ``the market will
decide which TLDs succeed and which do not.'' What is wrong with
allowing the market to continue to decide with new gTLDs from the
expansion?
Answer. If ICANN's program was likely to enhance competition and
expand the Internet marketplace, you would expect broad statements of
support for it from multiple stakeholders. That is most certainly not
the case here. The more scrutiny it has received, the more groups have
strongly concluded that the program is not ready to be rolled out. This
program has multi-billion dollar implications for all marketers and
consumers. For example, in a December 16, 2011 letter to ICANN, the
Federal Trade Commission (FTC) noted that ICANN has failed for over a
decade to address serious issues with the WHOIS database, which is
critical to protecting consumers in cyberspace. The Commission also
noted the serious conflict of interest issues that have been raised
about ICANN's vote to approve the TLD expansion. Those issues raise
fundamental concerns about whether the program is truly a fair and open
marketplace.
Question 11. If commenters are correct that ``there are no
artificial or arbitrary limits in other media on the number of places
in which trademark holders must defend against dilution'' then why
should we place ``artificial or arbitrary'' limits on the Internet?
Answer. The unlimited expansion of TLDs would dramatically increase
the cost and complexity for trademark holders to protect their rights.
The immediate cost imposed on businesses is likely to be in the
billions of dollars. Applying for a new Top Level Domain name will
require an extraordinarily expensive registration fee of $185,000 as
well as a minimum cost of $25,000 paid annually to ICANN over the ten-
year contractual commitment that successful applicants must make. Costs
will further escalate at the second level of naming--the word to the
left of the ``dot''--as brand owners will have to consider registering
each of their brand-related terms, for either commercial or defensive
purposes.
Some have estimated that, for a typical company, the cost of
acquiring a single gTLD and managing it over the initial commitment of
ten years could easily exceed $2 million, including expenses for the
application process, operations, disputes, and related legal services.
The costs associated with trademark monitoring and protection in all
the new gTLD spaces will run even higher. Some members of ANA and the
Coalition for Responsible Internet Domain oversight (CRIDO) spend over
$1 million a year today to enforce against cybersquatting and fraud in
the existing 22 gTLD spaces. These numbers will clearly escalate if
ICANN's proposal goes forward. In addition, many companies may face an
auction for a generic Topic Level Domain, which will result in higher
costs to ICANN's benefit. Many companies have hundreds or even
thousands of brands to defend. Brand owners will face a Hobson's choice
of either being compelled to spend substantial resources to acquire and
manage new gTLDs or risk the harm to their brands that could occur if
they take no action. This has certainly been the message spoken loud
and clear to us from our members and the many groups within CRIDO.
______
Response to Written Question Submitted by Hon. Maria Cantwell to
Esther Dyson
Cracking down on rogue websites
Question. Ms. Dyson, do you believe that the increase in top level
domains combined with all the requirements ICANN is putting in place
will make its easier, more difficult, or not change the ability of U.S
authorities to crack down on Internet sites--to use the phase--that are
dedicated to infringing activity?
Answer. I believe that the increase in volume is likely to make the
task more difficult and reduce the US's ability to effectively stop
illegal activity because it will be easier to create and exploit new
websites . . . and consumers are likely to be even more confused than
now when they try to figure out what's legitimate and what's not.
Unfortunately, ICANN does not have a very good record of properly
enforcing its own requirements, so I'm not inclined to believe its
promises as the opportunities for abuse proliferate.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Esther Dyson
United Nations Model
Question 1. There has been a growing contingency of other countries
critical of the ICANN multi-stakeholder model and about the US'
involvement and influence with ICANN. Some governments, not necessarily
friendly to the U.S., are seeking to increase their power over the
Internet and its governance.
Russia and China (with Tajikistan and Uzbekistan) have proposed to
the United Nations an Internet ``Code of Conduct,'' which a senior
State Department official stated ``they seek to justify the
establishment of sovereign government control over Internet resources
and over freedom of expression in order to maintain the security of
their state.\1\'' Even Russian Prime Minister Vladimir Putin remarked
recently his desire of ``establishing international control over the
Internet using the monitoring and supervisory capabilities of the
International Telecommunication Union (ITU).\2\''
---------------------------------------------------------------------------
\1\ http://www.huffingtonpost.com/2011/09/27/russia-china-internet-
control_n_984223.html.
\2\ http://premier.gov.ru/eng/events/news/15601/.
---------------------------------------------------------------------------
The other proposal by India, Brazil and South Africa calls for the
creation of a new body within the United Nations to oversee Internet
policy. As a result, ICANN as well as the Internet Governance Forum
(IGF) could be significantly marginalized or hijacked by this new UN
entity.
These proposals seem to be in direct conflict with our Nation's
effort to privatize the Internet through transferring the authority of
the DNS to the private sector and for the Internet governance model to
be private-sector led.
If the U.S. Government followed the advice to unilaterally delay
the gTLD expansion, what do you believe the impact would be globally
and do you believe this would fan the flames of anti-U.S. government
sentiment with respect to Internet governance? Could it give more
momentum to other governments' calls to have the United Nations assert
oversight over ICANN or replace it altogether?
Answer. Basically, it is up to ICANN itself whether to delay the
GTLD expansion. If they do it the right way--genuinely soliciting input
from all over the world--then I think that would in fact reduce other
governments' standing to take over ICANN. It needs to reach out beyond
governments and domain-name interests to see whether the public itself
wants new domain names. . .and make sure its board represents those
diverse interests.
Question 2. If the U.N. did take control or governments had greater
involvement, what impact would that have on American businesses and
citizens that utilize the Internet? What impact could it have on
Freedom of Speech?
Answer. It's hard to predict exactly, but I think it would be
likely to reduce freedom of speech and freedom of association in
general.
Growth of the Internet and expansion of the domain name system
Question 3. The Internet has been so amazingly beneficial to small
businesses because it allows them to globally expand their local
markets and enables them to compete with Fortune 100 companies because
the size of the computer screen is the same for a small business in
Bangor as it is for a multi-national corporation like Wall-mart. Small
businesses are the anchor to not only Maine's economy but to our
Nation's and the Internet has been invaluable to them.
Supporters of the expansion have stated it will bring new
competition and choice to the Internet space and allow the Internet to
continue to grow in the number of websites, content, applications, and
online services. It also presents businesses new models to harness the
boundless benefits of the Internet.
There have already been expansions to top level domains in the past
to accommodate for the growth of the Internet, with the intro of gTLDs
like .biz, .info, .museum, .mobi, etc.
Given that there have already been two expansions of top level
domains, it seems difficult to simply state that there shouldn't be any
additional top-level domains for the Internet. The Internet is all
about expansion and innovation, after all. Are you really saying we
already have all the top-level domains the Internet will ever need?
Answer. In extremis, any new name you can dream up--such as
ANYNAME--can either be represented as ANYNAME.com or it's redundant to
an existing ANYNAME.com. If you actually look at most of what's in the
new TLDs, you will find huge amounts of redundancy and conflicts. Most
companies I talk to register their names in .com, .net, .org and a
variety of other TLDs. . . . So, again, it's redundancy rather than
expansion.
And meanwhile, any new business model can work with the existing
domain name system. . . . Such as all the names that come after the
slash as in twitter.com/edyson.
Question 4. If the Internet is going to continue to grow shouldn't
the domain name system?
Answer. It can expand within the current structure. The shortage is
not of domain names; it's of space in people's heads to remember all
the names.
Question 5. Putting aside your request for delay, are there
specific improvements you would recommend in the gTLD program that
would address your concerns?
Answer. The obvious answer is stronger upfront protection for
trademarks, but all this will come at tremendous legal cost with very
few benefits. And of course, more attention to the legal protections
suggested by CRIDO and actual enforcement of ICANN's requirements. And
finally, a change in who is represented on ICANN's board and other
decision-making bodies.
White Paper
Question 6. In the ``White Paper,'' which was released in 1998 and
led to the formation of ICANN is competition, has as one of its core
principles is competition--that competition and consumer choice should
drive the management of the Internet because they will lower costs,
promote innovation, encourage diversity, and enhance user choice and
satisfaction.
Comments in the White Paper \3\ on the issue of new generic top
level domains showed ``very strong support for limiting government
involvement during the transition period on the matter of adding new
gTLDs. Specifically, most commenters--both U.S. and non-U.S.--suggested
that it would be more appropriate for the new, globally representative,
corporation to decide these issues once it is up and running.'' Also,
commenters noted that ``there are no artificial or arbitrary limits in
other media on the number of places in which trademark holders must
defend against dilution.''
---------------------------------------------------------------------------
\3\ http://www.ntia.doc.gov/federal-register-notice/1998/statement-
policy-management-internet-names-and-addresses.
---------------------------------------------------------------------------
Isn't the expansion of gTLD a form of competition, where .hotels or
.cars could compete against .com or .biz? If not, why?
Answer. In theory it is, but in practice it is more a way of
eroding the value of existing names.
Question 7. As stated the white paper highlighted that ``most
commenters--both U.S. and non-U.S.--suggested that it would be more
appropriate for the new, globally representative, corporation to decide
these issues once it is up and running.'' What has happened since the
inception of ICANN that warrants the United States Government from
ignoring these initially comments from U.S. and non-U.S. stakeholders
that ICANN should decide the issue of new gTLDs?
Answer. Yes, I do think it's appropriate for ICANN to make these
decisions, but they should consider the public interest more thoroughly
when they do so. As it is, the major benefits will go to insiders--
people in the business of selling and managing domain names--rather
than to the owners or users of the names.
Question 8. Several commenters also stated ``the market will decide
which TLDs succeed and which do not.'' What is wrong with allowing the
market to continue to decide with new gTLDs from the expansion?
Answer. In principle, there's nothing wrong with this . . . but the
domain-name market seems stacked to the benefit of insiders. The
reality is that there is no competition for ICANN itself.. That's not
necessarily a problem, but it means that ICANN and the entities that
control it should be held to a high standard of accountability to the
public interest.
Question 9. If commenters are correct that ``there are no
artificial or arbitrary limits in other media on the number of places
in which trademark holders must defend against dilution'' then why
should we place ``artificial or arbitrary'' limits on the Internet?
Answer. Because the benefits of the expansion go to third parties
rather than to the participants. De facto, ICANN and its stakeholders
are creating dilutive property rights out of thin air and then
auctioning many of them to the highest bidders.
______
Name.Space, inc.
New York, NY
Thank you this opportunity to present the views of Name.Space and
its board of directors to the Committee on Commerce's hearing on ICANN
and the expansion of Top Level Domains.
I am Paul Garrin, the founder of Name.Space, a first mover in the
Internet Top Level Domain registry field, working to bring our original
generic TLDs to market since 1996, predating ICANN by two years.
Name.Space recognizes the concerns of intellectual property
holders, and we believe that we have a constructive and workable
solution for policy and practice that will satisfy all parties, and
welcome this opportunity to present our views to the Committee on
Commerce at this December 8, 2011 hearing.
This testimony is intended to serve the Committee members and
parties concerned about the positive impact of new generic Top Level
Domains by raising awareness of our position and vision for a
constructive approach to bringing generic Top Level Domains to market
in a way that protects intellectual property owners, and creates new
opportunities for branding, consumer choice and confidence, and free
expression.
Historically, the commercialization of the Domain Name System has
been plagued with ill-will. Cyber-squatting, domain name speculation,
and fraud cost legitimate publishers, content creators, and brand
owners millions of dollars in settling disputes, paying inflated prices
from domain auctioneers and speculators, and in defensive domain name
registrations. There are many conditions that led to this cascade of
malfeasance resulting in defensive actions, un-budgeted costs, and
damages to intellectual property and brand owners, and consumers.
Foremost, is the lack of competition in the commercial TLD registry
space. The incumbent registries, through their aggressive practices
have done nothing but fuel the feeding frenzy on unmitigated domain
name speculation in order to maximize their profits without regard to
the negative consequences against brand owners and the overall utility
of the DNS. ICANN's own policies only partially address brand
protection through the (optional) sunrise period that precedes the
launch of a new gTLD to the general public, and the trademark and brand
clearing house.
Name.Space, in its year 2000 application to ICANN, presented its
policy and business practices that we believe are the most equitable in
protecting the interests of intellectual property and brand owners, and
free speech. Our business model is based not on exuberance over a
particular string, but on a balanced portfolio of gTLDs that represents
opportunities to create strong new brands, essential for new businesses
and products, as well as for less popular community, cultural, and free
expression purposes. Our model establishes an economy of scale that
supports both commercially valuable gTLDs, and less-profitable gTLDs
that serve smaller communities, and free expression, at a stable and
affordable price point.
In the upcoming 2012 gTLD round, Name.Space will re-assert its
policies and responsible business practices for the fair delegation of
domain names under its gTLDs, as well as work with IP interests and
ICANN to develop new methods that better serve the proactive and
preemptive protections necessary for the protection of intellectual
property and brands in all of the gTLDs that we own and operate.
Some of Name.Space's IP protections include:
(1) Registered trademark name clearing house and preemptive
famous names filter.
(2) Sunrise period reserved for registered brands and
intellectual property at a fixed wholesale cost.
(3) Whois ``lockout'' that prevents registered brands from
becoming available to the general public.
(4) Wholesale registrar access with volume discounts to
associations who serve intellectual property constituents.
(5) Full cooperation with organizations such as the ANA, IPO,
WIPO, INTA, MPAA, and others to develop technologies, policies,
and business practices for operating our gTLDs that protect
existing brands, and develop new opportunities to use gTLDs to
create strong new brands, and to present owners with innovative
ways to protect and serve their content online.
(6) Restrictions on registering domain names for the sole
purpose of resale.
Name.Space had applied for 118 of its original generic Top Level
Domains (including such gTLDs as .ART, .BOOKS, .MUSIC, .NOW, .SHOP,
.SPACE, .SUCKS) in the first gTLD round held by ICANN in 2000. Although
our application was accepted under ICANN's rules, and selected in the
top 10 picks of ``strong candidates'', it was not advanced toward
delegation, and thus remains pending. Our year 2000 ICANN application
had the support of then Chair Esther Dyson, who stated that Name.Space
represents diversity, free speech, and is likely to be a successful
business that supports both commerce and free expression.
Name.Space, whose business has a potential value of over 1 billion
dollars, has been deprived the opportunity to fully launch and operate
its portfolio of gTLD properties under what we believe is the most
responsible, fair, and ethical practices yet to be employed in the
commercial domain name industry. ICANN's approval of Name.Space's gTLDs
will increase competition and diversity in the TLD registry space, and
assure that our exemplary practices will best serve the public by
providing the new gTLDs and the opportunities they present for new
brands, small businesses, individual publishers and content creators,
and for all owners of content libraries and new services in all media.
The Internet is evolving and new gTLDs are an essential part of
Internet infrastructure, and its evolution.
The 2012 ICANN round is the first opportunity for gTLD selection
since 2000, and we have very patiently been waiting for this time to
arrive so that our business can reach its full potential. We don't
believe that our responsible and ethical approach to operating our
gTLDs will harm intellectual property and brand owners, but will in
fact protect them and offer new opportunities. Any further delay in
launching our business will do nothing but cause further distress to my
struggling business, and prevent us from creating jobs and contributing
to the economy. We ask that there be no delay in the ICANN 2012 gTLD
round, and that ICANN honor our year 2000 application for the portfolio
of gTLDs that Name.Space originated since
1996, operated in commerce, and that we reserve our rights to.
Name.Space is committed to the principles and practices stated here,
and we believe that our gTLD policies are fair and exemplary, and
welcome the cooperation of ICANN and the intellectual property
associations to work with us in the most constructive and reasonable
way so that our gTLDs become available on the global Internet without
further delay.
I look forward to questions from the members of this committee, and
to the beginning of a constructive dialogue with constituencies
affected by the introduction of new gTLDs to the global Internet.
Sincerely,
Paul Garrin,
Founder,
Name.Space.
Appendix:
Name.Space has testimony on the record from hearings held by both
Senate and House Commerce Committees on the subject of Top Level
Domains submitted between 1997-2001. Name.Space is an early advocate of
the shared registry system, and an advocate of a neutral non-profit
organization to oversee the framework for introducing new gTLDs to the
Internet, and was a participant in the IFWP process from which ICANN
emerged.
Brief history:
1996--Name.Space launched real time domain name registry service
publishing its original generic TLDs
1997--March 11, Name.Space requested Network Solutions add our gTLD
data to the global root.zone file.
1997--March 12, Network Solutions refuses to add our gTLDs to
root.zone
1997--March 20, Name.Space files antitrust suit against Network
Solutions in Federal Court, Southern District NY
1997--September 25 House Commerce Committee hearing on Internet
Domains Pt 1 (Name.Space testimony on record)
1997--September 30 House Commerce Committee hearing on Internet
Domains Pt 2 (Name.Space testimony on record)
1997--National Science Foundation joined to lawsuit on First
Amendment grounds
1998--Commerce Dept. NTIA releases ``Green Paper'' (Name.Space
comments on record)
1998--Commerce Dept. NTIA releases ``White Paper'' (Name.Space
comments on record)
1998--Commerce Dept. NTIA IFWP process (Name.Space participates)
1998--NTIA takes over contract between NSF and NSI, and amends it
(amendment 11)
1998--Commerce Dept. NTIA contracts Internet Corporation for
Assigned Names and Numbers
1999--NTIA creates separation of TLD ``registry'' (wholesale) and
domain name ``registrar'' (retail) using shared registry system. Prices
drop from $100 per 2 year registration to $30 per year.
1999--ICANN accredits 30 companies to serve as domain name
registrars (reselling .COM); Name.Space accredited
2000--February, Second Circuit Court of Appeals decision--immunity
for Network Solutions
2000--November--Name.Space participates in ICANN gTLD round,
submits 118 gTLDs, pays $50,000 application fee; is picked in top 10
strong applicants; support from chair Esther Dyson, opposed by other
board members; application unresolved, still pending. *several ICANN
board members recused themselves in connection with TLD applications
that were selected.
2001--February 8 House Commerce Committe ICANN hearing (Name.Space
testimony on record)
2001--February 14 Senate Commerce Committee ICANN hearing
(Name.Space testimony on record)
2000--Present--Name.Space business severely impacted by non-global
access for its gTLDs, struggles to stay afloat. New investment enables
us to participate in the 2012 round with our standing application from
2000.
Links to view video from ICANN's 2000 gTLD round:
Paul Garrin presents Name.Space to ICANN board, answers board's
questions (Nov. 15, 2000): http://replace.tv/vid/2000-icann1115-pg-
presents.mov (approx. 8 min.)
ICANN board (sans recused members) discusses the Name.Space gTLD
application: http://replace.tv/vid/2000-icann1116-pt02-ns-
discussion.mov (approx. 28 min.)
For more information, history, press highlights links, please see:
http://about.namespace.org.
Select press links:
http://www.nytimes.com/library/cyber/week/032297domain.html
(Name.Space formerly known as PGP Media) http://timeto.freethe.net/pg/
media/washpost
19970706.txt
http://news.cnet.com/2100-1023-203408.html (Name.Space formerly
known as PG Media)
http://timeto.freethe.net/pg/media/dot-monopoly1.jpg http://
timeto.freethe.net/pg/media/dot-monopoly2.jpg
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/
2000/12/03/BU113071.DTL
http://www.thevillager.com/villager_314/thebattleofnyc.html
Attachments:
(1) Name.Space ICANN application from the 2000 gTLD round
(2) Questions and answers from ICANN to Name.Space on the 2000
application
(3) Name.Space business plan (2000 version as submitted to ICANN)
[Attachments not inserted into the record.]
______
ICANN
14 December 2011
At-Large Advisory Committee
Att:
Hon. John D. (Jay) Rockefeller IV,
Chairman, Senate Committee on Commerce, Science, and Transportation
United States Senate,
Washington, DC.
Dear Chairman Rockefeller,
We are following up on the discussions which took place during the
8 December 2011 hearing of the United States Senate Committee on
Commerce, Science and Transportation about ICANN's expansion of generic
Top Level Domains.
As current chairs of ICANN's At-Large Advisory Committee (ALAC) and
North American Regional At-Large Organization (NARALO), we found Ms.
Esther Dyson's description of the ALAC circa 2003 extremely out-of-
date. Her testimony depicted the ALAC prior to the establishment of the
five Regional At-Large Organizations (RALOs) which are designed to
provide a structured input first to the ALAC and then to ICANN from
Internet end-users around the world. However, we fully support her
overall message for the public to pay attention to the workings of
ICANN, and that ICANN's door is open.
Today, the ALAC is able to comment on any aspect of the new gTLD
program, which it has on several occasions, as well as any other
program or process at ICANN. It carries much more ``weight'' within
ICANN's multi-stakeholder, bottom-up model, than it had in the past,
thanks to the hard, relentless work of many end-user volunteers who are
fighting in the ``trenches'' to bring the public interest to the ICANN
table. We have nearly 140 At-Large Structures (acronym ALS--any formal
commercial or non commercial organization having established a process
to collect member input at a country level, whether a local non-profit
computer club, or a charity bringing computing to the disadvantaged)
worldwide and are increasing our membership on a monthly basis.
We believe it is the duty of ICANN, and of the ALAC, to impress
upon legislators and the Executive Branch in all countries that the
touchstone of future Internet development is, and should remain, in the
public interest. In parallel, we wish to draw the attention of
legislators in the United States to the fact that, because their
conclusions and choices regarding the Internet have the potential to
affect Internet end-users elsewhere, United States' initiatives and
laws should seek to be compatible with the public interest
internationally.
Active At-Large members cannot purport to ``represent'' the 2.1
billion global Internet users, but they can try to act in what they
honestly believe is in the best interests of the Internet's end users.
Do we have enough members? Probably not--our aim is to have at least
one At-Large Structure (ALS) in every country around the world. We need
more volunteers. We need more input from global Internet end-users.
The vehicle for this input is here. It is already used and has
produced dozens of statements every year, which you and your honorable
colleagues can consult on: http://www.atlarge.icann.org/correspondence
However, this vehicle needs to be more advertised. We are doing our
part to raise awareness of ALAC and the issues of interest to global
Internet end-users.
We ask that you share the information of this vehicle as outlined
above with your colleagues.
Yours sincerely,
Beau Brendler, Chair,
North American Regional At-Large Organization (NARALO),
http://www.naralo.org/ Yonkers, New York.
Dr. Olivier MJ Crepin-Leblond, Chair,
At-Large Advisory Committee,
http://www.alac.icann.org/ London, UK.
______
Council of Better Business Bureaus, Inc.
December 8, 2011
Hon. Jay Rockefeller IV,
Hon. Kay Bailey Hutchinson,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Dear Chairman Rockefeller and Senator Hutchinson:
The Council of Better Business Bureaus (CBBB) would like to thank
you for holding a hearing on the important topic of Internet domain
expansion.
CBBB concurs with the concerns expressed by the Association of
National Advertisers and the nonprofit constituency of the Internet
Corporation for Assigned Names and Numbers (ICANN). Currently, there is
insufficient control over the rampant crime that takes place via the
Internet in the form of pirating of intellectual property, identity
theft, phishing scams and other types of brand infringement and
consumer fraud. CBBB and its constituents--small and medium business,
nonprofits and consumers--are victimized by Internet crime on a daily
basis.
Before ICANN undertakes a mass expansion of potential websites, it
needs to come up with a workable solution, in conjunction with
international crime fighting organizations and victims of crime, to
improve the ability of law enforcement to track and shut down illicit
activities on currently registered Internet websites.
As a not-for-profit trade association with famous and well-
recognized trademarks, CBBB has to devote considerable resources to
tracking and taking action against illicit use of its trademarks on the
Internet. We also have to spend scarce financial resources each year
purchasing domain names in all of the different top level domains
corresponding to all of our trademarks and programs to keep
illegitimate users from purchasing our name and diverting traffic to
their fraudulent websites. An increase in the top level domains will
exponentially increase these costs.
ICANN's current proposal requires trademark holders to register
their trademarks in a Trademark Clearinghouse and then purchase or
block each trademark in each new top level domain (an expense that most
non-profits and small businesses cannot afford). Instead of the current
proposal, ICANN should block the new TLD registries from selling
domains that belong to trademark holders and have been properly
registered in the Trademark Clearinghouse.
As an example of the backward manner in which ICANN ``protects''
trademarks, it is notable to consider the experience the CBBB had in
the most recently opened top level domain, the .xxx TLD operated by ICM
Registry for the adult entertainment industry. Any trademark holder
that wanted to ensure that its trademark was not sold in that registry
had to block it during the ``sunrise'' period. Otherwise, ICM could
sell the trademark as domain names, a common practice. In all, ICM and
the registrars selling to .xxx made approximately $23 million from this
type of defensive registration by trademark holders who simply wanted
to protect their good names from abuse.
Even more astounding was the fact that ICM Registry refused to
accept CBBB's registration of its most famous trademark (``BBB,'' one
of the most recognized trademarks in North America) because ICANN
allowed ICM to reserved bbb.xxx as a premium name that it can later
auction off to the highest bidder.
Another type of Internet crime and organizational identity theft
occurred just yesterday when the BBB network e-mail and registered
torch logo were used as tools in a widespread phishing scam that sent
e-mails to thousands of people across North America and victimized
unsuspecting e-mail recipients who believed these e-mails came from
BBB. Despite best efforts, long hours and wasted resources, it is
difficult to identify the perpetrators of phishing scams such as this.
ICANN was authorized to operate the domain naming and addressing
system under the condition that it act in the public interest, per the
terms of its Memorandum of Understanding with the Department of
Commerce and its subsequent Affirmation of Commitments. To fulfill this
public interest requirement, ICANN must balance the desire for greater
competition on the Internet with suitable protections for legitimate
organizations and hard working business owners. That is essential to
fulfilling its public interest commitment.
Without more controls on Internet registries and registrars, the
Internet will increasingly serve criminal interests over the public
interest. More resources must be made available to combatting Internet
crime. We recommend that these strong actions be taken before ICANN
expands top level domains, an expansion that will only exacerbate these
grave problems.
The Council of Better Business Bureaus and our entire BBB network
appreciate the work of the Committee in helping solve these issues that
impact large and small companies, nonprofits, charities and,
ultimately, consumers.
Sincerely,
Stephen A. Cox,
President and CEO,
Council of Better Business Bureaus, Inc.
______
Dell, Inc.
Washington, DC, December 7, 2011
Senator Jay Rockefeller IV,
Chairman
Committee on Commerce, Science, and Transportation
Washington, DC.
Senator Kay Bailey Hutchison,
Ranking Member
Committee on Commerce, Science, and Transportation
Washington, DC.
Dear Chairman Rockefeller and Ranking Member Hutchison:
Thank you for committing your and the Committee's time and
resources toward exploring the implications of the International
Corporation for Assigned Names and Numbers' (ICANN) generic top-level
domain (gTLD) expansion plan. This proposal is of great concern to Dell
and our many online customers.
As a company that transacts significant business online, Dell is
already a major target of online criminals who fraudulently incorporate
our trademark into domain names in attempts to steal individuals'
private information, sell dangerous counterfeit products, or otherwise
defraud consumers. Dell expends significant resources, in the form of
litigation and defensive domain name procurement, to counter these
threats to consumer welfare in the existing universe of domain names.
ICANN's plan to multiply the size of that universe will both multiply
the expenses required to undertake those defenses, as well as multiply
the potential online threats to consumers. We believe that the
inevitable result of ICANN's current plan will be erosion of consumer
trust in ecommerce, along with significant new expenses on all honest
companies that transact business online--expenses that are particularly
undesirable during a time when our economy needs companies to invest
instead in innovation and job creation.
ICANN's multi-stakeholder process did not adequately address the
concerns of stakeholders in the domain name system, and Dell believes
it imperative for the U.S. Government to now take steps to ensure that
ICANN fulfills its obligations to resolve these serious issues. We
respectfully request that you and your colleagues encourage the
Department of Commerce to ask ICANN, under the Affirmation of
Commitments Agreement, to delay implementation to fully review and work
to resolve stakeholder concerns, particularly those that threaten the
consumer trust that currently enables ecommerce to thrive.
Respectfully,
Rebecca MJ Gould,
Vice President,
Global Government Relations
and Public Policy.
______
Prepared Statement of Jim Gibbons, President and CEO,
Goodwill Industries International, Inc.
Mr. Chairman, Ranking Member, and members of the Committee, on
behalf of Goodwill Industries International, Inc., I appreciate this
opportunity to submit written testimony on the Internet Corporation for
Assigned Names and Numbers (ICANN) expansion of new generic top level
domains (new gTLD program).
Goodwill Industries is comprised of 165 independent, community-
based Goodwill agencies in the United States and Canada and 14
international affiliates. Collectively, Goodwill's network of local
agencies provides employment training, job placement services and other
community services to nearly 2.5 million people annually. In addition,
170,000 people obtain meaningful employment as a result of Goodwill
career services programs. These employees earn $2.7 billion in salaries
and wages and contribute to their communities as productive, taxpaying
citizens.
Goodwill Industries is one of the early organizational members of
the Not-for-Profit Operational Concerns Constituency (NPOC). After
several years of discussing the new gTLD program, the ICANN board
identified the nonprofit sector as an under-represented voice within
the ICANN community and Internet governance, thus appointing a new
councilor to represent and promote the needs of nonprofits in the fall
of 2009. In June, 2010 the nonprofit voice had increased sufficiently
and warranted the formation of a new constituency. NPOC was formally
approved by the ICANN board on June 24, 2011. Unfortunately by the time
the nonprofit sector was recognized and able to raise valid concerns,
the proposed guidelines for the new gTLD program has undergone many
revisions. NPOC currently represents 23 nonprofits from around the
word, 11 of which are based in the United States including the YMCA.
Many other applications are pending membership, demonstrating the
increased interest by nonprofits of this issue. Goodwill Industries
supports the testimony provided by Angela Williams, General Counsel,
YMCA of the USA on behalf of her agency and NPOC.
As a member of NPOC and one of the five most valuable and
recognized nonprofit brands as well as a leading social services
enterprise, Goodwill Industries has several concerns with the new gTLD
program, including: budgetary concerns; the increased risks of fraud,
cybersquatting, and trademark infringement; and public confusion.
Budgetary Concerns
The ultimate cost in proceeding through the entire process of
applying for a gTLD could reach several hundred thousand dollars. The
initial application cost is to be approximately $185,000 plus an
additional annual cost thereafter of at least $25,000 for a required
ten-year term. This does not include the legal fees required to prepare
the application and certain amounts required to be in escrow.
Furthermore, additional costs can be incurred if an applicant is
required to defend the application. For example, if ICANN requires an
extended evaluation of an application, the applicant may have to pay an
additional $50,000 including fees to defend the application which range
from $1,000 to $5,000 in filing fees per party per proceeding, and an
additional $3,000 to $20,000 in costs per proceeding, which must be
paid up front.
Should Goodwill choose not to participate in the new gTLD program,
there is a great risk that another entity will apply for the use of the
name ``goodwill'' or one that is similar--such as a misspelling of the
word ``goodwill''. In the likely event that another entity applies for
a top-level domain that contains ``goodwill'', the costs for filing an
objection are expected to be $30,000 to $50,000.
As a nonprofit social enterprise committed to its mission of
eliminating barriers to opportunity and helping people in need reach
their fullest potential through the power of work, Goodwill Industries
and its local members simply do not have the resources to participate
in the new gTLD and will certainly not be able to compete against for-
profit organizations with resources and reserves available for
intellectual property protection. In these tough economic times when
faced with decreased donations and increases in the number of people
seeking services, Goodwill and other nonprofits must continue to use
funds to provide critical services to our communities. Goodwill simply
cannot afford thousands of dollars to become a domain name registry
solely to ensure brand protection. Becoming a domain name registry is
not part of Goodwill's mission, yet protection of its reputation and
brand is critical. Founded in 1902, Goodwill has a long history and a
solid reputation with the millions of shoppers, donors, and people who
use our services. Last year Goodwill earned the trust of 74 million
donors and provided job-training and employment services to nearly 2.5
million people.
Risk of Fraud and Public Confusion
The primary enforcement mechanism of the new gTLD program is the
Trademark Clearinghouse where registered trademark owners can protect
their registered trademark rights. Many of the costs of listing marks
in the Trademark Clearinghouse are still unclear, creating uncertainly
as to whether this is a viable option for nonprofits to protect their
brands.
The Trademark Clearinghouse will only apply to exact matches of
trademarks, rather than common misspellings, etc. that fraudsters and
cybersquatters often use to deceive and confuse Internet users
attempting to locate a particular nonprofit. Nonprofits are not in a
position to register their marks using hundreds of additional gTLDS,
particularly at premium prices.
Bad actors such as fraudsters and cybersquatters who register and
use domain names in bad faith to take advantage of the established
trust between nonprofits and the public and the brand reputation of
other well-known entities have existed for many years. Goodwill
Industries recently learned of an unauthorized entity using its name to
fundraise online and in a local community. Potential funders were
confused about which organization was seeking donations and for what
purpose. Unfortunately this is a common occurrence as trademark
infringement is becoming more rampant.
The likely increased public confusion and fraud that will occur in
the new gTLD space will be particularly devastating for nonprofits. If
nonprofits, including Goodwill and our members, are not able to
adequately protect names and trademarks, bad-faith domain name
registrants will be able to inappropriately profit from hundreds of
domain names that are identical or similar. In addition, those bad
actors may disseminate dangerously false information to Internet users,
greatly increasing the likelihood that the public will be misled.
Conclusion
Goodwill Industries believes ICANN should eliminate the costs--or
at a minimum, drastically reduce the costs--for verified nonprofits to
participate in the new gTLD program. Furthermore, verified nonprofit
trademarks should be exempt from the new gTLD program at little-to-no
cost and mechanisms for trademark protection within the new gTLD
program should be significantly strengthened.
Goodwill is an innovative social enterprise and as such has
expanded its presence on the Internet and increased its mobile
accessibility to meet the needs of its shoppers, donors, and program
participants. The zip code locator is the most popular feature of
www.goodwill.org where one can find the nearest Goodwill to shop,
donate, volunteer, and/or receive job-training and employment services.
Like many nonprofits, Goodwill is also increasing its online
fundraising capacity. As Goodwill continues to see growth in these
areas, protecting our brand, reputation, and the nonprofit sector as a
whole is more important than ever. However, these protections should
not come at the expense of the critical services that nonprofits
provide.
Thank you for taking the time to consider these consequences of the
new gTLD program. We look forward to continuing our work with ICANN via
our participation in NPOC to ensure the voice of the nonprofit sector
and the people we serve is heard.
______
Easter Seals
December 12, 2011
Hon. John D. Rockefeller IV,
Chair,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Dear Senator Rockefeller:
Easter Seals is pleased to endorse the testimony of the Not-for-
Profit Operational Concerns Constituency (NPOC) before the United
States Senate Committee on Commerce, Science, & Transportation on the
issue of the Internet Corporation for Assigned Names and Numbers'
(ICANN) new Generic Top-Level Domain Name Program (new gTLD Program)..
Easter Seals, like many non-profit organizations, increasingly
relies on the Internet for communicating and fulfilling our mission to
provide services and supports to people with disabilities and other
special needs. The potential for cybersquating and fraud could be
greatly increased under the gTLD Program and groups like Easter Seals
would need to divert greatly needed resources away from services to
protect ourselves. We believe that the new gTLD Program, as currently
defined, will ultimately create unintended, and costly, consequences
for not-for-profit organizations.
Thank you for your consideration.
Sincerely,
Jennifer Dexter,
Assistant Vice President,
Government Relations.
______
Prepared Statement of the National Restaurant Association
The National Restaurant Association appreciates the opportunity to
register the U.S. restaurant industry's strong opposition to the
January 2012 roll-out of the new generic top-level domain (gTLD)
program approved by the Internet Corporation for Assigned Names and
Numbers (ICANN) in June 2011.
The Association is the leading business association for the
restaurant and foodservice industry. Our industry is comprised of
960,000 restaurant and foodservice locations. These nearly 1 million
restaurant locations serve more than 130 million Americans every day.
Our members include multi-state, multi-unit restaurant brands with
thousands of locations worldwide and small independent businesses with
a single location.
The restaurant industry plays a significant role in our Nation's
economy. Restaurants will generate an estimated $604 billion in sales
this year, with an overall economic impact of more than $1.7 trillion.
The restaurant industry is one of the Nation's largest private-sector
job creators, employing about 12.8 million people, representing nearly
10 percent of the U.S. workforce.
The Association joins more than I 00 other major business
associations and companies in the Coalition for Responsible Internet
Domain Oversight (CRIDO) in urging the Department of Commerce to stop
or delay ICANN's new gTLD program. We were part of CRIDO's petition to
U.S. Department of Commerce Secretary John Bryson in November urging
the Department to work with ICANN on delaying and reconsidering the
program.
We believe ICANN's gTLD program would impose billions of dollars in
unnecessary costs on the restaurant industry at a time when restaurant
operators are looking forward to investing in their businesses and
hiring employees after the worst recession in decades. Profit margins
in restaurants are notoriously slim, with restaurants averaging about 4
percent in pre-tax profits on every dollar in sales. The ICANN program
will divert scarce restaurant resources away from job creating,
business-building activities. These are dollars far better spent
reinvesting in our businesses.
If ICANN proceeds as planned, the organization will start accepting
applications next month for hundreds and ultimately thousands of new
top-level domains. Restaurants of all sizes will be forced to apply for
new domains to protect their brands and trademarks. Costs include a
$185,000 application fee for each new top-level domain. Restaurants and
other companies also likely would be forced to register numerous
second-level domains--the words to the left of the ``dot'' in Internet
addresses--within the new top-level domains. Costs would be driven
higher by legal, marketing and other costs. Some businesses have put
the cost of registering a single top level domain at $2 million or more
over the initial 10-year contract as companies submit applications,
watch and defend their domains, monitor for infringement and litigate
to block abuse. Costs could run higher if businesses are forced to buy
their own Internet names in auctions.
The Internet is increasingly central to restaurateurs' efforts to
attract guests and grow their businesses. This is true for both major
restaurant brands and independent restaurants. Association research
shows that Americans increasingly go online for information about
restaurant menus, specials, nutrition facts and more. Restaurants rely
on the Internet to reach guests. Our members would have little choice
but to apply for domain names for both commercial and defensive
reasons. For our largest restaurant-member brands, the price tag is
exorbitant. For the hundreds of thousands of smaller restaurant
operators who depend on the Internet to communicate with guests, the
costs and confusion could be insurmountable.
Even beyond the financial toll the gTLD program will exact on
millions of U.S. businesses, the Association believes that ICANN's
program will confuse consumers by spreading Internet searches across
hundreds or even thousands of new top-level domains. As confusion
grows, each domain name becomes less valuable. This could undermine
consumer trust in the system and make it harder for the Internet to
serve as the efficient conduit for business activity that it does
today.
The U.S. government has delegated powers to ICANN to govern the
domain-name process. ICANN is responsible for ensuring its actions
further the public interest and promote consumer trust. ICANN says it
has built consensus on its recommendations; indeed, its contract with
the Department of Commerce requires this consensus. Yet the Association
believes ICANN has failed to justify the need for the potentially
explosive expansion in top-level domains or to get consensus from the
millions of business stakeholders who will be affected by the program.
Finally, we believe ICANN has taken only minimal steps to educate
and inform the business community and consumers about the new top-level
domain process. If ICANN proceeds with the January roll-out of its gTLD
program, businesses and non-profit organizations will be immediately
affected. Yet even given the reaction of the business and non-profit
communities to the ICANN program, there has been little education and
information to help businesses and consumers understand the scope of
what is about to happen. Millions of American business owners know
nothing about the gTLD expansion. Information has filtered out slowly
and sporadically since ICANN approved the program in June, leaving
businesses and consumers in the dark about one of the biggest shake-ups
in Internet marketing in decades.
The Association asks Congress and the Commerce Department to urge a
reassessment of the gTLD program before its planned roll-out in
January. We thank the Committee for holding this hearing to air the
serious concerns of America's business community with ICANN's domain
name expansion program.
______
Prepared Statement of Josh Bourne, President,
Coalition Against Domain Name Abuse (CADNA)
Chairman Rockefeller, Senator Klobuchar and distinguished members
of the Committee, thank you for convening this hearing on the Internet
Corporation for Assigned Names and Numbers (ICANN) and its program to
expand the number of new generic top-level domains (gTLDs) in the
domain name space. This is a drastic change that ICANN is about to
implement. It will dramatically impact the space, and given the
commercial significance of the Internet, it is critical that the United
States Congress involve itself in matters of domain name space policy
and regulation.
My name is Josh Bourne and I am the president of the Coalition
Against Domain Name Abuse (CADNA). Over four years ago with the help of
leading brand owners we founded CADNA, a 501(c)(6) non-profit
association, to combat a variety of abuses on the Internet. CADNA
represents businesses vital to the American and global economies from a
wide range of commercial industries including financial services,
manufacturing, pharmaceutical, leisure, high technology, and
manufacturing. Our members include companies such as: Dell, DIRECTV,
Lilly, Hewlett-Packard, Hilton, HSBC, LEGO, Marriott, Nationwide, New
York Life Wells Fargo, and Wyndham.
CADNA was founded in response to the growing international problem
of cybersquatting, which is the bad faith registration of domain names
that include or are confusingly similar to existing trademarks. In
addition to the mounting legal costs that companies now face in defense
of their own trademarks in the domain space, this infringement costs
organizations billions of dollars in lost or misdirected revenue. CADNA
works to decrease instances of cybersquatting in all forms by
facilitating dialogue, effecting change, and spurring action on the
part of policymakers in the national and international arenas. CADNA
also aims to build awareness about illegal and unethical infringement
of brands and trademarks online. In the four years since its inception,
CADNA has generated valuable new intelligence to help inform and
expertly guide its members and increase awareness of CADNA's mission.
CADNA seeks to make the Internet a safer and less confusing place for
consumers and businesses alike.
Thank you very much for the opportunity to present the views of our
organization on this very important topic.
CADNA looks at the way that the New gTLD Program was developed as
the product of a flawed system. CADNA believes that the goal of
fostering innovation and competition through the expansion of the
domain name space is not inherently objectionable, but rather, that the
policy development process that ICANN conducted created a problematic
program.
Since ICANN's June 20 decision to approve the Applicant Guidebook,
CADNA has continued to promote changes in ICANN to improve governance,
policy making, and to increase transparency. In addition, we have
looked to find ways to ensure that ICANN follows through on its
commitments with respect to the implementation of the gTLD policy and
to develop recommendations that may improve the policy going forward.
CADNA's aim is to be a constructive partner in the Internet
governance process. We have always supported ICANN's multi stakeholder
system and strongly believe that, with some reforms, ICANN can better
fulfill its designated mission. Our research efforts and conversations
with hundreds of potential participants in the application process have
resulted in several recommendations. I will be the first to admit that
they need further development, but CADNA believes that they can serve
as the basis of further dialogue with the Internet community and ICANN.
Here are some concrete steps that can be taken to immediately
improve the implementation of the gTLD policy:
A declaration by ICANN of when the next applicant round will
take place would relieve much of the anxiety surrounding the
first round. CADNA has found that businesses feel forced into
applying for new gTLDs in the first round, lest they be put at
a disadvantage relative to their competitors who may gain an
edge by acquiring their own new gTLDs.
Businesses are worried about dealing with the cybersquatting
that will occur to the ``left of the dot'' in the new space--in
other words, they are worried about the defensive registrations
that they will need to pay for in others' new gTLDs and the
infringing domains that ultimately get registered by
cybersquatters. To alleviate this issue, ICANN should require
registries to give brand owners the option to buy a block on
their trademark before any registration period (sunrise or
land-rush) opens. This can be offered at a lower cost than
sunrise registrations have been priced at in the past--this
precedent has been set with the blocks offered in .XXX, where
the blocks are made in perpetuity for one, non-recurring fee.
If ICANN is awarded a renewed IANA contract, the National
Telecommunications and Information Administration (NTIA) should
renew the IANA contract for one year. In this one year, there
should be an evaluation of whether ICANN followed through on
its commitments with regard to the gTLD process and any
extension of the contract should be contingent on conducting
internal reforms to improve governance and transparency.
As the process moves forward, CADNA believes there will be many
more improvements that can be made. In the coming months, CADNA intends
to monitor progress and to research and develop other recommendations.
Mr. Chairman, you have been an outspoken leader on Internet issues
and on Internet governance. The exponential expansion of the Internet
created by ICANN's gTLD policy holds tremendous opportunities for
innovation and for improving the lives of many. At the same time, the
new policy creates many challenges in regard to the enforcement of
individual rights, intellectual property protection, and consumer
fraud.
CADNA would like to seize this opportunity with you and your
Committee, the Obama Administration, and other private and public
partners to develop an ICANN policy making process that will not repeat
the mistakes of this gTLD policy, but one that will produce policies
that will improve the Internet experience for all Internet users.
______
Hon. John D. Rockefeller IV,
Chairman,
Commerce, Science, and Transportation Committee,
United States Senate,
Washington, DC.
Hon. Kay Bailey Hutchinson,
Ranking Member,
Commerce, Science, and Transportation Committee,
United States Senate,
Washington, DC.
Dear Chairman Rockefeller and Ranking Member Hutchinson:
In response to the December 8 hearing regarding new generic top-
level domains (gTLDs), we write to register our concern with the
mischaracterization of elements of the gTLD program, and to communicate
our support for new gTLDs.
The organizations signing this letter believe the introduction of
new gTLDs will be innovative and economically beneficial, that the
Internet Corporation for Assigned Names and Numbers (ICANN) has
conducted an inclusive and well-handled review of the program, and that
preparations for gTLD introduction are sufficient to ensure Internet
security and stability and to protect rights holders.
ICANN, along with multiple relevant stakeholders and policy
organizations, including the Generic Names Supporting Organization,
undertook a very lengthy, comprehensive and transparent process that
led to the approaching application for and introduction of new gTLDs.
Since the formation of the multi-stakeholder Internet governance, no
process has been as inclusive, and no level of outreach has been as
far-reaching as the one facilitating discussion of namespace expansion.
ICANN, its stakeholders, the intellectual property community, and
governments are to be applauded for actively seeking, welcoming and
incorporating the input of so many.
As undeniably inclusive as this process has been, however, we
believe it is even more important to recognize the significant social
and economic opportunities new gTLDs will provide, particularly in a
fragile global economy. Since ICANN's establishment in 1998, a key
element of its mandate has been not only to ensure the secure and
stable operation of a global domain name system, but to promote the
competition and consumer choice that contributes to global economic
growth. Established and developing economies are anticipating the new
opportunities afforded by new gTLDs and it is noteworthy that this
expansion will include internationalized domain names (IONs), TLDs that
permit Internet users, for the first time, to access domain names in
their native languages and character sets.
Innovation and expansion into new areas of technology always bring
questions and concerns-further development of the namespace is no
exception. Since ICANN's inception in 1998, it has successfully managed
careful generic namespace expansion while addressing the well-known
concerns of many, including cybersecurity experts, government
representatives, intellectual property rights holders, and others.
Since the process for the current round of expansion was introduced in
2005, more than six years ago, all interested stakeholders took
unprecedented steps-well in advance-that provide further protections
against infringement, damage or harm to national interests. More than a
dozen open-to-the-public global meetings, nearly fifty public comment
periods, a dedicated meeting between the ICANN Board and its
Governmental Advisory Committee, and the exchange and discussion of
tens of thousands of documents confirm that the decision in favor of
new gTLDs can't be logically characterized as sudden.
These painstaking deliberations have involved some of us more than
others. However, we each equally respect and support the efforts and
the intentions of ICANN in this beneficial endeavor. We are confident
the evaluation process for applicants, including the stringent
attention to DNS stability and security, will allow for a safe and
productive new gTLD introduction.
While new gTLDs will experience different levels of end-user
adoption, we optimistically anticipate the useful possibilities for new
services and applications from the namespace, the positive economic
impact in the United States and globally, the inclusion of developing
nations in Internet growth and development, and the realization of the
hard work and preparation of the thousands of interested stakeholders
dedicated not only to their own interests, but that of the global
Internet.
Sincerely:
Alexa Raad, Chief Executive Officer, Architelos
Alexander Siffrin, Chief Executive Officer, Key Systems GmbH
Andreas Schreiner, Chief Executive Officer, lnterNetWire Communications
GmbH Angie D. Graves, President, WEB Group, Inc.
Antony Van Couvering, Chief Executive Officer, Minds + Machines
Bhavin Turakhia, Chief Executive Officer and Founder, Directi
Bret Fausett, President and Founder, Internet Pro APC
Clyde Beattie, Principal, The Yorkland Group
Dr. Liz Williams, Chief Executive Officer, Sedari
Elliot Ness, Chief Executive Officer, Tucows
John Styli, Chief Operating Officer, Far Further
Jonathon Nevett, President, Domain Dimensions, LLC
Kevin Saimon, President, Urban Brain
Krista Papac, Chief Strategy Officer, ARI Registry Services
Loren Salman, Chief Executive Officer, Far Further
Mason Cole, Principal, 5x5 Communications
Michael Berkens, Director, RightOfTheDot LLC
Mike Rodenbaugh, Founder, Rodenbaugh Law
Monte Cahn, President/Director, RightOfTheDot LLC
Nacho Amadoz, Legal & Policy Director, Fundacio PuntCAT
Paul Stahura, Chief Executive Officer, Donuts Inc.
Richard Wilhelm, Principal, RJW Partners, LLC
Robert Connelly, President, Domains Only
Robin Gross, Executive Director, IP Justice
Steve Miholovich, Sr. Vice President Sales & Marketing, Safenames Ltd.
Susan Prosser, Vice President, Marketing, Domain Tools
Tad Yokoyama, President, Interlink Co., Ltd.
William Mushkin, Chief Executive Officer and Founder, Name.com
cc: Members of the Commerce, Science and Transportation Committee