Internet Draft A.M.Rutkowski NetMagic November 1995 Generic International and Domestic Institutional Considerations for DNS Naming and Number Administration STATUS OF THIS MEMO This document is an Internet-Draft. Internet-Drafts are working documents of the Internet Engineering Task Force (IETF), its areas, and its working groups. Note that other groups may also distribute working documents as Internet-Drafts. Internet-Drafts are draft documents valid for a maximum of six months and may be updated, replaced, or obsoleted by other documents at any time. It is inappropriate to use Internet-Drafts as reference material or to cite them other than as "work in progress." To learn the current status of any Internet-Draft, please check the ``1id-abstracts.txt'' listing contained in the Internet- Drafts Shadow Directories on ftp.is.co.za (Africa), nic.nordu.net (Europe), munnari.oz.au (Pacific Rim), ds.internic.net (US East Coast), or ftp.isi.edu (US West Coast). ABSTRACT This document analyzes the surrounding legal jurisdictional, operational, and functional requirements and practices in light of potential transitions of Internet DNS name and numbering responsibilities and administration. It notes that although international and domestic bodies like the ITU or FCC possess jurisdiction in this area, they are likely to be receptive to participating in and sanctioning some form of new adhoc international and domestic alliances effected by service providers and operations bodies. Such an approach would also provide a measure of immunity from litigation, and comport with traditional Internet community preferences for distributed bottom-up solutions undertaken by existing ISP and operations communities whose interests are most affected, rather than top-down single organization oversight and control. TABLE OF CONTENTS Status of this Memo.............................................1 Abstract........................................................1 1. INTRODUCTION.................................................2 2. LEGAL JURISDICTION AND EXERCISE OF AUTHORITY.................3 3. COMITY AMONG INTERESTED PARTIES..............................4 4. FUNCTIONAL REQUIREMENTS......................................9 5. COMPETENCY..................................................10 6. PRECEDENTS AND PRACTICE.....................................11 Security considerations........................................11 Acknowledgements...............................................11 Author's address...............................................11 Rutkowski Expires Jun 1996 [Page 1] Internet Draft Proposal re: DNS and Number Administration November 1995 1. INTRODUCTION This note seeks to outline and discuss the issues and factors associated with the administration of Internet names and numbers. It is only a preliminary consideration of this matter prepared both for policy makers and the Internet community, and not represented as either exhaustive or complete. Citations of authority are not provided. For the purposes of this note, Internet names are those of the Domain Name System (DNS) in the style ZZZ.COM, and Internet numbers are those for network or host addresses of the Internet Protocol (IP), in the style 206.5.17.0. It should be noted that there are other Internet numbers involved, but are not dealt with here. These names and numbers arise from the application of Internet standards known as Request for Comments (RFCs) that have been developed by the Internet Engineering Task Force (IETF). The IETF is an independent, unincorporated association of technical experts that voluntarily agrees upon standards that are then provided in the public domain on Internet servers worldwide. It is the collective voluntary use and implementation of specific names and numbers by Internet Service Providers (ISPs) and end users in conjunction with the operation of their networks and attached computers, and maintenance of DNS servers, on a highly distributed basis that actually implements and enforces use of the names and numbers. This usage is presently facilitated by: o Coordination of ISPs among themselves, and via the Commercial Internet Exchange Association (CIX), the principal ISP international organization, and FARNET, TERENA, and other non-commercial ISP organizations, and the development of the principal implementing implementation standards and software by the Internet Software Consortium; o A variety of operations coordination bodies, including the International Engineering Planning Group (IEPG), the Operations Area of the IETF, North American Network Operators's Group (NANOG), the European Operators Forum, the Asia-Pacific Networking Group (AP NG), the FNC created Routing Authorities, the Coordinating Committee for Intercontinental Research Networks (CCIRN), and many national level operators organizations. Rutkowski Expires Jun 1996 [Page 2] Internet Draft Proposal re: DNS and Number Administration November 1995 o Global number and name management services provided under a small research programme known as the Internet Assigned Numbers Authority (IANA) funded by the U.S. government via the National Science Foundation and awarded to the University of Southern California Information Sciences Institute (ISI); o Global number and name management registration services provided under a research programme known as the Registration InterNIC funded by the U.S. government via the National Science Foundation and awarded to Network Solutions Inc. (NSI); o Regional number management and name coordination services provided by an unincorporated association maintained and funded by European ISPs known as the Reseaux IP Europeens Network Coordination Centre (RIPE-NCC); o Regional number management and name coordination services provided by an unincorporated association organized and funded by Asia-Pacific ISPs known as the Asia-Pacific Network Information Centre (AP-NIC); o National level name registration provided by approximately 140 entities of various kinds - primarily in research and academic establishments known as Top Level Domain Network Information Centres (TLD-NICs); and 2. LEGAL JURISDICTION AND EXERCISE OF AUTHORITY Legal jurisdiction relates to the acquisition of authority, capacity, power or right to act under some system of law. It should be differentiated from the exercise of the derived authority. The distinction is particularly important in this matter, because under significant applicable policies such as the FCC's Computer trilogy, jurisdiction has been asserted, but regulatory agencies have maintained forbearance in their exercise of authority. In the case of Internet numbering and addressing, there are three bases for assertion of legal jurisdiction and authority. Rutkowski Expires Jun 1996 [Page 3] Internet Draft Proposal re: DNS and Number Administration November 1995 a. Public International Law For nearly 150 years, the global numbering and addressing associated with virtually all public communications infrastructure has been provided for by intergovernmental organizations established by contract, treaty or other arrangements. Today, these organizations are the International Telecommunication Union (ITU) and the Universal Postal Union (UPU). Under both its Constitution and the International Telecommunication Regulations - both signed as treaty instruments by most of the world's nations - the ITU has broad jurisdiction over virtually all telecommunications, telecommunications services, and facilities, as well as an explicit to maintain and extend international cooperation for "telecommunications of all kinds." The ITU has thus far not exercised this authority as it pertains to Internet networks and services because of: o the rapid emergence of Internet networks and services o provisions of Art. 31 of the ITU Constitution that provide for "the right to make special arrangements on telecommunication matters which do not concern Members in general"; o provisions of Art. 9 of the International Telecommunication Regulations for "special arrangements on telecommunication matters which do not concern Members in general...including, as necessary, those financial, technical, or operating conditions to be observed." These provisions must be read in conjunction with Opinion No. 1 of the Final Acts of the World Administrative Telegraph and Telephone Conference, Melbourne, 1988 (WATTC-88), which may condition application of the provisions in some countries; o general regulatory policies, embodied in national and regional law and the World Trade Organization (WTO) General Agreement on Trade in Services (GATS) Telecommunication Annex that encourage minimum regulation of value added services; and o the inaccessibility of Internet networks and services by the public until comparatively recently. Rutkowski Expires Jun 1996 [Page 4] Internet Draft Proposal re: DNS and Number Administration November 1995 However, the emergence of the Internet as a principal manifestation of global information infrastructure, combined with widespread availability to the public and the appearance of issues which clearly concern "Members in general," produce a basis for exercise of the authority the ITU possesses. These changed circumstances do not imply that the ITU should or would necessarily exercise the authority, or couldn't effectively delegate the authority to a third party such as an alliance or confederation of which it was a part, and effected the purposes entrusted to the ITU. The ITU has over most of its history been primarily an organization of public telecommunication services providers and product manufacturers, with efforts undertaken in recent years to also embrace users of these services. In this instance, in the so-called new telecommunications environment, it should be inclined to look to the providers of Internet services and products to deal with numbering and addressing matters. b. Domestic Law Virtually every country has a national agency with broad jurisdiction over all forms of telecommunication. In the U.S., the Federal Communications Commission (FCC) has so-called Title I statutory authority that encompasses "...all interstate and foreign communication by wire or radio...." The Commission's authority has been broadly interpreted and upheld by the Court, and clearly encompasses Internet networks and services. It has, however, under the Computer I, II, and III promulgated doctrine of "forbearance" concerning the regulatory category into which the Internet falls (enhanced networks and services), and sought to apply it to U.S. state and local jurisdictions as well (with mixed success). For many of the same reasons enumerated for the ITU, above, the FCC has not become previously directly involved in Internet related matters - even if the Internet arena has been a significant indirect beneficiary of it's policies. However, for many of the same reasons as the ITU, the FCC is reacting to changing conditions. Rutkowski Expires Jun 1996 [Page 5] Internet Draft Proposal re: DNS and Number Administration November 1995 With the exception of radio station call signs, the FCC has not itself administered names and address associated with any telecommunication service or network. Where the need has arisen to deal with the subject, for example with respect to telephony networks, the Commission has looked to service provider organizations, while remaining responsive to concerns about anti-competitive conduct. It seems likely that the Commission would maintain a similar position with respect to the provisioning of Internet services to the public and behavior among access providers. It remains an interesting hypothetical question as to whether State authorities in the U.S., for example the Public Utility Commissions, could or would exercise authority over Internet naming within their State jurisdictions. Such a result would depend, among other factors, on the outcome of the FCC Computer III preemption doctrine. c. Intellectual Property Rights A third basis for exercising legal authority over Internet naming and addressing encompasses intellectual property rights over the related standards or databases, as well as trademark issues associated with the registration and use of domain names. This is somewhat separate from the matters of jurisdiction raised above, but would necessarily need to be dealt with by any entity exercising authority. The standards for naming and addressing have long been in the public domain, so there seems no basis for any kind of remote assertion of ownership by anyone associated with their development. It is possible to argue that those who have been engaged in the process of registering names and addresses have established and allocated a property right. The issue has at least been indirectly broached by recent trademark controversies where allegations have arisen about such registrations amounting to an infringement of trademark rights. However, the infringement would arise from use or denial of use in commerce, not the mere act of registration. Rutkowski Expires Jun 1996 [Page 6] Internet Draft Proposal re: DNS and Number Administration November 1995 As to acquisition of a property right by virtue of database maintenance, one of the interesting properties of the Internet is its highly distributed configuration. It is therefore primarily Internet Service Providers and their larger customers who constitute the preponderance of the Domain Name System servers. As a result, under such a database ownership theory, it would seem that the DNS server operators of the world who would prevail. The systems of international and domestic trademark protection are also implicated in dealing with jurisdiction matters. Thus the World Intellectual Property Organization (WIPO), the United Nations Education, Scientific, and Cultural Organization (UNESCO), and domestic trademark organizations have interests that are invoked and treaty instruments that may be applicable. 3. COMITY AMONG INTERESTED PARTIES The legal concept of comity seems most applicable in dealing with the kind of complex issues that are invoked by Internet numbering and addressing. Comity implies that you look at the principal parties involved, the interests invoked, and the requirements necessary, then in a spirit of accommodation, craft a result that best balances and meets all those factors. The following attempts to identify principal parties, interests, and requirements. a. Internet service providers and organizations Internet Service Providers are by far the parties most affected by Internet addressing and numbering administration and use. It affects them in their ability to attract and support customers, to compete against others service providers, and in the operation of their networks. ISPs must directly bear costs and liabilities of any scheme - more so than for almost any other kind of network infrastructure. It is not surprising, therefore, that ISPs have funded and helped manage the RIPE NCC and the AP- NIC encompassing all the world regions except the Americas. It is also the CIX Association which has played a leading role in developing meaningful solutions and tools to effect a scalable, distributed solution. Rutkowski Expires Jun 1996 [Page 7] Internet Draft Proposal re: DNS and Number Administration November 1995 Additionally, it is the industry maintained Internet Software Consortium that develops the principal implementing standards and software, and it is ISPs participating actively in Internet standards organizations such as the IETF and the World Wide Web Consortium (W3C), and operations forums who shape the standards and practices whereby the Internet and its applications function. History has also demonstrated that in reasonably competitive environments, it is service providers operating through commonly supported dedicated organizations - as opposed to third party bodies - that are most efficient and effective in developing workable solutions that meet common interests. b. End users and organizations After ISPs, it is end users who are significantly affected by numbering and addressing. It affects their ability to access and use the Internet in a timely fashion, their ability to maintain their computer hosts and the costs associated with doing so. In the case of domain names, it may also affect their commercial identity and ability to participate effectively in the marketplace. It should be noted that more than just public Internets are involved here, as the number and name resources involved here also encompass "enterprise internets" which are actually several times more numerous than the networks constituting the global public Internet. Major end user representative organizations like the International Telecommunications Users Group (INTUG) and the International Communications Association (ICA) have long been indirectly involved in dealing with enterprise Internet issues, and recently begun to focus on emerging Internet policy matters. c. Internet product manufacturers and organizations Internet product manufacturers are affected by numbering and addressing solutions both in terms of the robustness and growth of the marketplace and users of their products, and by additional features that may be potentially required for those products. Rutkowski Expires Jun 1996 [Page 8] Internet Draft Proposal re: DNS and Number Administration November 1995 d. Intergovernmental organizations Intergovernmental organizations are affected principally in terms of the international public trust and other more specific responsibilities for which they were created. Increasingly in the international telecommunications field, this has also encompassed both the creation of open, competitive marketplaces as a means of rapid implementation of new technologies and services on a widespread basis, as well as the special needs of developing countries. This principally invokes the interests of the ITU, WTO, and WIPO/UNESCO for general telecom regulatory, open competitive provisioning, and trademark issues, respectively. e. Domestic governmental authorities Analogous to intergovernmental organizations, domestic governmental authorities are affected in terms of the national public trust and other more specific responsibilities for which they were created. In the U.S., on the part of the FCC, that definitely encompasses open, competitive issues. In addition, a variety of government agencies, including legislative and executive branches of government have diverse interests in promoting the Internet as a national information infrastructure. In nearly all countries, including the U.S., there is also a transitional problem in removing government agencies from vestigial numbering and addressing roles as a robust Internet Service Provider environment emerges. In the U.S., this includes a transition of international responsibilities to a suitable international alliance. 4. FUNCTIONAL REQUIREMENTS Whatever institutional architectures and bodies are created for administering Internet numbering and addressing must be able to perform certain functions that are a complex mixture of operational, technical, public policy, and legal requirements. Rutkowski Expires Jun 1996 [Page 9] Internet Draft Proposal re: DNS and Number Administration November 1995 a. Legislative Administration of numbers and addresses requires procedures that in turn produce the equivalent of administrative rule making. It will require notice to all the affected parties of proposed rules or procedures, receipt of comments, balancing of complex issues, decision making, publication, appeals, and the establishment of precedents. b. Executive Administration of numbers and address requires an ability to execute the procedures in an efficient and timely fashion to meet the needs of the ISP community served. Given the distributed characteristics and growth rates of the Internet and enterprise internets, it seems apparent that only a relatively distributed solution is possible. Considerable Internet technical and operational skills are required here. c. Quasi-judicial Administration of numbers and addresses requires adjudication of disputes that will inevitably arise that are both procedural or substantive in nature. There is considerable evidence that these disputes may involve very complex trademark or anticompetitive issues. At the global domain name level, it will additionally require dealing with Conflict of Laws. 5. COMPETENCY Whatever institutional architectures and bodies are created for administering Internet numbering and addressing must have certain characteristics that encompass competency in its broadest sense. a. Legal In any kind of formal Internet administrative environment, the entities meeting the above functional requirements must have the legal authority to do so - either by pre-existing treaty or statutory instrument, or by delegation from such entities. b. Functional Entities performing the legislative, executive, and quasi-judicial functions must have the skills and facilities to actually accomplish them. Rutkowski Expires Jun 1996 [Page 10] Internet Draft Proposal re: DNS and Number Administration November 1995 c. Liabilities One of the most difficult problems associated with Internet numbering and addressing is potential exposure to litigation and losses by aggrieved parties on a wide variety of legal theories. The entity or entities doing this at international levels potentially suffers from even greater exposure brought about by the complexities of different and often conflicting national law and policies. The problem has usually been dealt with by entrusting the responsibility to either a public international organization which enjoys significant immunities from such litigation, or by establishing the organization in a country where immunity is provided by either special legislative enactment or by the nature of the legal system. It is no coincidence, for example, that Switzerland is host to more international organizations than any other nation. In the instant situation, it is worth considering whether an alliance than encompassed a public international organization that possessed immunity, could transfer the immunity to the alliance by delegation of administrative authority. Although liability insurance or some kind of litigation fund is a potential alternative, it's not clear that everyone should be required to bear the costs of such disputes. In addition, the estimation and management of such monies is both uncertain and complex. d. Sustainability The Internet environment being exponential in its growth is unlike almost any other. It requires technical, administrative and payment features that can also scale exponentially. As a general rule, this means that central, top-down schemes, or those that rely on funding from a single source, will not work effectively for very long. e. Internationalism and heterogeneity Those entities functioning at the international level, must be able to support the diversity of languages, currencies, time zones, Internet implementations, customs, laws, and cultures inherent in this environment. In the Internet arena, this also includes dramatic difference in computer networking versus telecommunications, and other infrastructure cultures. Rutkowski Expires Jun 1996 [Page 11] Internet Draft Proposal re: DNS and Number Administration November 1995 6. PRECEDENTS AND PRACTICE As noted above, for almost 150 years, it has been the practice to administer communication naming and addressing requirements through a combination of international and domestic organizations of service providers. In many instances, these organizations have had the characteristics of intergovernmental or governmental bodies, although during the past decade, the practice has been increasingly to place these functions in private-sector service provider organizations with some nominal oversight by a public agency, if necessary. The Internet service provisioning environment works effectively through its own ISPs, organizations such as the CIX, and a diversity of international and regional operations bodies who cooperate on a continuing basis. It is further complicated, however, by a rapid transition that has already largely occurred from a government funded research and academic environment to a preponderantly private-sector commercial competitive one, but which has left some vestigial and unnecessary governmental involvement in place. 7. SECURITY CONSIDERATIONS None. 8. ACKNOWLEDGEMENTS Constructive comments have been received from many members of the Internet and telecommunications policy communities, especially during the course of the NSF sponsored workshop of the Kennedy School of Government at Washington DC, 20 Nov 1995, for which this material was originally prepared. A.M.Rutkowski Netmagic Chaos Creations 13102 Weathervane Way Herndon VA 22071 USA tel: +1 703 471 0593 fax: +1 703 471 0596 email: amr@chaos.com www: http://www.wia.org/rutkowski.html Rutkowski Expires Jun 1996 [Page 12]