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Launching the DNS War: Dot-Com Privatization and the Rise of Global Internet Governance

Launching the DNS War: Dot-Com Privatization and the Rise of Global Internet Governance

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Published by Craig Simon
This dissertation investigates the Internet governance debates of the mid 1990s, narrating events that led to the signing of the Generic Top Level Domains Memorandum of Understanding (gTLD-MoU) in May 1997. During that period, an unlikely alliance formed to create a new institutional structure that would administer the Internet’s Domain Name System (DNS). The collaborators included members of the Internet technical community’s “old guard,” leading officials of the International Telecommunications Union, representatives of organized trademark interests, and others. Their ambitious project aimed at constituting a formal procedural apparatus capable of operating at a world-wide level, independent of the sovereign state system. Institutional membership in the new structure was intended to confer participation rights and normative obligations, thereby establishing status relationships that resonated with the kinship, ingroup, and citizenship relationships of legacy social orders.
The example serves as a particularly valid and germane case study that can be used to model power relations among responsible agents in an expressly global system of rule. This postulated case allows for a more useful comparison of power relations within past, present, and future epochs.
This dissertation investigates the Internet governance debates of the mid 1990s, narrating events that led to the signing of the Generic Top Level Domains Memorandum of Understanding (gTLD-MoU) in May 1997. During that period, an unlikely alliance formed to create a new institutional structure that would administer the Internet’s Domain Name System (DNS). The collaborators included members of the Internet technical community’s “old guard,” leading officials of the International Telecommunications Union, representatives of organized trademark interests, and others. Their ambitious project aimed at constituting a formal procedural apparatus capable of operating at a world-wide level, independent of the sovereign state system. Institutional membership in the new structure was intended to confer participation rights and normative obligations, thereby establishing status relationships that resonated with the kinship, ingroup, and citizenship relationships of legacy social orders.
The example serves as a particularly valid and germane case study that can be used to model power relations among responsible agents in an expressly global system of rule. This postulated case allows for a more useful comparison of power relations within past, present, and future epochs.

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Published by: Craig Simon on Jun 27, 2011
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The 34 meeting of the IETF was held in Dallas, Texas, the first week of December

th

1995. Hosted by MCI, it was only the second IETF meeting where attendance had exceeded

one thousand registered participants. But it was the first to convene since the Netscape IPO

and the release of Windows 95, and since the NASDAQ stock index had closed over 1000.

Now the Dow was about to broach 5000, a gain of over 20 percent for the year. The Internet

frenzy was well underway, drawing inevitable attention to the wizards of the IETF, who,

behind the scenes, were finding themselves distracted from leading-edge technical work by

the unsolved, age-old political problem of how to divide up and distribute a resource in a way

that could allow all comers to feel were getting a fair share.

Brian Carpenter, Chair of the IAB, took the lead, presenting a paper at a BOF on the

IETF Role in DNS Evolution – DNSEVOLVE. His paper served as the basis for the first

331

formal Internet draft on how to proceed, emerging after the holidays, on January 22, 1996,

under the name “Delegation of International Top Level Domains (iTLDs).” Co-authored by

Postel, Carpenter, and Bush (who identified himself as “Unaligned geek”), it was filed under

an unusual name – “draft-ymbk-itld-admin-00.txt.”

332

At first glance, it seemed to follow the normal style for documents in the RFC queue.

Going from back to front: Geeks tend to start numbering at zero. ADMIN flagged

administrative concern. ITLD was a fresh acronym. The “i” suggested international, but

Postel defined it as a category reserved for “generic top level domains open to general

registration.” This was convenient, since he had just arranged with NSI to eliminate

236

screening in .net and .org, giving them equivalent administrative status with .com. YMBK

reflected less technical content. It stood for “you must be kidding.”

The draft retained Postel’s goal of introducing five iTLDs annually, and fleshed out

procedures for doing so. Selections were to be made sometime in March or April by a seven

member “ad hoc” working group, whose members would be appointed by the IANA, the

IETF, and the IAB. The ad hoc group would be required to develop the finer details of its

own procedures and policies, “in an open process [that] will be clearly documented.”

The draft also stipulated that “Multiple registries for the COM zone, and registries

for new iTLDs will be created.” This formulation hints at the registry/registrar structure that

finally emerged a year later. But the distinctions between the back-end wholesaler and front-

end retailer were still quite vague. The authors didn’t even have the words they needed to

help them say what they hoped to mean. There wasn’t much descriptive vocabulary yet

beyond “domain” and “registry.” In any case, the point was that NSI’s monopoly on .com

was to be terminated by the implementation of some new form of name registration

technology that was still under development.

This was a clear case of high level IETF members doing social engineering rather

than Internet engineering. “There is a perceived need,” the co-authors wrote, “to open the

market in commercial iTLDs to allow competition, differentiation and change.” Beyond their

freelance anti-trust project, they were frank about wanting to perpetuate IANA and protect

Postel. “As the net becomes larger and more commercial, the IANA needs a formal body to

accept indemnity for the touchy legal issues which arise surrounding DNS policy and its

implementation.” The body named, of course, was ISOC.

IANA was seeking more than ISOC’s legal umbrella. Postel needed to find a long-

term source of funding in order to wean IANA from US Government support. The draft

envisioned a structure in which registries would have to pay ISOC $5,000 annually for their

charters. Some of the money would presumably be passed on to IANA.

Locating new sources of income was a pressing issue. DARPA was already scaling

down its contribution to the IETF. The writing was on the wall for the IANA. It would have

been unwise for Postel to count on getting support from the NSF’s new Information

237

Karl Denninger, “Top Level Domain Delegation Draft, Rev 0.1.” Circulated by Jon Postel as, “Karl

333

Denninger’s Suggestion,” Newdom-iiia January 29, 1996.

Infrastructure Fund. Mitchell and Strawn had flaunted the original promise to solicit

community input before allowing the imposition of fees, and they could just as easily

overlook the pledge that NSF’s $15 portion of the fees would be used to subsidize IANA.

Under these circumstances, Postel could conceivably do what Kahn and Cerf had

done at CNRI – solicit corporate donations. But there was a better option than begging and

becoming beholden to a benefactor. As the defacto overseer of the IP number space and the

root zone, his gatekeeping power ostensibly included the power to collect tolls, and such

power could be used to lever a steadier source of income.

Postel concluded the ymbk draft with a short appendix that rejected the idea of “A

Thousand Domains Experiment.” Despite its “social appeal,” he had serious concerns. The

first was that dramatic expansion of the TLD space would be an “irreversible decision.” The

second had to do with habits of working that were well known to computer programmers:

“TLDs, like global variables, should be few and created with great care.” Both reasons were

self-consciously moderate, reflecting a deeply ingrained cultural attitude. When moving into

unfamiliar territory, Postel and those close to him preferred to acquire experience

incrementally. When it comes to collective action, technologists tend to be a cautious lot. A

consensus player, Vixie soon withdrew his proposal for thousands of new TLDs and

endorsed Postel’s iterative approach.

Karl Denninger, owner of MCSNet, a major ISP serving northern Illinois and

outlying regions, submitted an alternate proposal just three days later, Jan 25. Postel

circulated it on Newdom, where it drew favorable attention. Denninger had started the biz.*

hierarchy on the UseNet several years before, and was now seeking .biz as his own TLD. He

had clearly put some thought into the trademark issue (informed, no doubt, by careful

attention to the knowledgenet controversy, since the domain holder had relied on Denninger’s

hosting services). Newdom’s members were intrigued by Denninger’s radical approach.333

According to Denninger’s plan, IANA would take responsibility for vetting registries.

It would be empowered to rescind charters, but would otherwise stay out of registry

238

David Maher, “K. Denninger’s Suggestion,” Newdom-iiia January 29 1996.

334

administration. Most importantly, Denninger insisted that IANA and the IETF should have

no institutional dependence on funds raised by imposing fees on registries, whether through

charters or redemptions from operations. He believed this would solve the indemnification

problem. If the IANA received no money from the registries, there would be no “deep

pockets” to attract litigants. He was also wary of imposing any kind of registry/registrar

distinctions that had been suggested. As an inveterate free marketer, Denninger’s vision

required leaving any contract details up to the registry and the registrant, thereby fostering

the blossoming (and self-organized weeding out) out of diverse business models.

After a short amount of supportive hubbub, words of caution came from David

Maher, the attorney who had represented MacDonald’s Restaurants during the negotiations

with Josh Quittner. Opening with the disarming admission that “lawyers on this group are

about as popular as a fart in church,” Maher warned that Denninger’s approach wouldn’t free

IANA or anyone else from legal risks.

Indemnifications are worth the paper they are written on (if they
are in writing) plus the net worth of the party giving the
indemnity.... The only solution to the problem is to set up a
system that is perceived as fair by as many users as possible
(including trademark owners) and then provide a due process
mechanism for expeditiously solving the inevitable disputes that
will arise. (creating dictators is not a solution).334

* * *

Maher was a Harvard-trained patent and trademark specialist who liked to dabble in

esoteric subjects like electronic publishing and artificial intelligence. He claims that he was

actually sitting in his office, reading the issue of Wired in which Quittner’s article appeared,

when a MacDonald’s representative called seeking help. After bringing the case to an

amicable conclusion in 1994 he became active in the International Trademark Association

(INTA), and was appointed co-chair of its Internet Task Force. The group produced its report

in July 1995, just before NSI issued its trademark-friendly registration policy. INTA’s Board

239

International Trademark Association, “Request for Action by the INTA Board of Directors,”

335

http://www.inta.org/policy/res_assigndn.shtml.

Ibid.

336

incorporated the report in a “Request for Action” issued on Sept 19, 1995 in response to

NSI’s imposition of fees.335

The trademark community was pressing two types of demands. The first concerned

the legal treatment of domain names: INTA wanted recognition of the fact that domain

names were capable of functioning as trademarks and that their misuse would harm

trademark owners. INTA’s second demand was intended to provide the trademark

community with technical mechanisms by which they could seek to enforce their rights. In

other words, they wanted surveillance mechanisms built into all DNS registries. The demand

had been addressed directly to ISOC.

[T]he Internet Society, its affiliated organizations and the parties operating
under contract with them should make available to the public complete lists
of the domain names in a database format that is accessible through existing
commercial or private computer search techniques.336

Coincidentally, Denninger and Maher were both based in Chicago. But there was no

alliance or meeting of the minds; their strategies diverged ever more widely over time. Maher

was not a technologist by trade, but an outsider pressing a policy likely to cause discomfort

among libertarian-leaning computer enthusiasts. Many such technologists were inherently

suspicious of any attempt to require that Internet core resources – its protocols and essential

infrastructures – be redesigned to serve the purposes of traditional governments and

industries. But Maher showed he was an able politician. He managed to stay engaged while

avoiding antagonistic exchanges. He patiently made his case on newdom, opened

correspondence with many of the players, and even attended IETF meetings (At one, he

sought to endear himself within that surveillance-loathing community by wearing a T-shirt

branded with the logo of a popular encryption application – PGP). He finally won a speaker’s

slot at an upcoming conference on DNS reform, and became a leading player in nearly every

major development which followed.

240

See the agenda and links to presentations at, http://aldea.com/cix/agenda.html.

337

Denninger, on the other hand, seemed a likely candidate to become a leader in the

reform community. He was simultaneously entrepreneurial and technical, and came forward

just at the time ISPs were becoming the darlings of the Internet boom. He was also an

outspoken advocate of fashionable policy dogmas such open competition and letting markets

pick winners and losers among innovators. Yet, as we will see, his style was far more

abrasive than Maher’s. Within a few months Denninger would move to the periphery of the

debate and lose any chance of effectiveness.

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