ICANN and New Top-Level Domains

This post originally appeared in a very similar form on lawlibrary.case.edu. This version has received additional editing, mostly related to format and presentation more than to content itself.

ICANN, the Internet Corporation for Assigned Names and Numbers has begun to accept applications to operate new “generic Top-Level Domains.” A “top-level” domain amounts to the right-most portion of a domain name, after the final dot. Venerable examples of “generic” top-level domains include .com, .edu, .net, and .org. Applicants are to propose new TLDs while applying to be the entity that will maintain a registry of that nominated domain. Unlike previous additions of new TLDs, the new policy does not merely envision a specific one-time expansion of the namespace, but instead creates a policy mechanism for continued, possibly rapid, expansion of the number of TLDs in use.

It is expected that hundreds of new generic Top-Level Domains will be added to the familiar batch we’ve used since the emergence of popular Internet applications. This is a major development in the system of non-state, non-national, governance centered around ICANN. While ICANN has concluded that the expansion of the available “name space” is a progressive and pro-competitive move for the Internet, the action is controversial, with major IP rights-holders and some consumer groups expressing particular qualms. At times, ICANN has also been in tension with elements in the U.S. government over its plans to extend the range of gTLDs, exposing the complicated issues around the degree of control U.S. policy-makers can or should exercise over global Internet governance.

The new generic TLDs will not only be more numerous, but will allow for domains in non-Latin language characters.

What ICANN does

ICANN is the body that governs Internet name-spaces—both the numeric IP addresses that uniquely identify all “hosts” on the network and the mapping of human-readable domain names to that system of network addresses. ICANN is a not-for-profit corporation formed only in 1998, and operates as the top-level governing body for coordination of names and addresses on the Internet.

The status of ICANN is complicated. It is a formally a California non-profit corporation, but seeks to build a global stake-holder network and operate as a global institution. Its functions can only be described as “governance,” yet it is a private-sector entity and is not a trans-national or multi-national organization. ICANN also represents, simultaneously, the deliberate devolution by the United States of the routine authority over Internet naming and the retention of at least potential ultimate control—the domain name system ultimately descended from systems derived under U.S. Defense Department contracts, and through a series of documented understandings with ICANN the U.S. government seems to have ceded vast amounts of control while retaining some unique leverage. Indeed, ICANN may be seen as in part the product of U.S. efforts to disentangle itself from the actual running of the Internet (and the politics involved in that) while avoiding the capture of Internet governance by an international body that would potentially share control with other governments.

While the management of country-code domains are assigned by ICANN to a registry and registrar selected by the government of a sovereign nation, the management of the ‘generic’ top-level domains can be assigned by ICANN (technically through its control of IANA) to a wider range of for-profit or non-profit operators who become responsible for the assignment and coordination of names within the “registry” for that top-level domain. These are alternately referred to as registry operators or NICs (Network Information Centers). Verisign, for instance, has long operated the registry for the .com and .net domains (it acquired Network Solutions, the early (pre-ICANN) operator of these domains, in 2000, and has retained Network Solution’s NIC business). Registrars, as opposed to the registry operators, are entities authorized to register a domain within one or more registries. Registrars must be accredited both by ICANN and by the registry operators for the top-level domains for which they operate. Major registrars who operate within multiple TLDs include GoDaddy, Network Solutions (the business that was sold off by Verisign after the 2000 acquisition), Register.com, and many others. Registrars (many of which are also in the separate web-hosting business) are the businesses with which an end-user in need of a domain for a new website will work.

The following lists point to selected resources of specific interest in light of new gTLDs and ICANN‘s status to implement them. This is not a full annotated bibliography of work related to domain name regulation. (Though one of those is in the works.)

Documents

  • Letter to ICANN, Lawrence E. Strickling, U.S. Dept. of Commerce, Assistant Secretary for Communications and Information

    While disclaiming any effort to interfrere with the results of ICANN’s “six-year international multi-stakeholder process,” the letter urges ICANN to consider additional measures, including to minimize the need for defensive registrations.

News Accounts of the expanded gTLD launch

  • Bloomberg story focuses on the potential windfall for registrars.
  • Reuters reports generally on the expansion and the industry and law enforcement criticisms of it.
  • NPR stories give a solid general account of the controversy (especially concerns about increased use of defensive registrations) and a focus on the contested status of ICANN in global Internet governance (including a discussion of the upcoming International Telecommunication Union meeting).
  • The second NPR story, above, is criticized by Milton Mueller in a posting on the blog of the Internet Governance Project. In particular, Mueller argues that the NPR story badly mis-characterizes the ITU and the history of foreign and trans-national responses to the U.S. role in Internet governance.

Background

Background Books on ICANN and DNS

  • Mueller, Milton, Ruling the Root: Internet Governance and the Taming of Cyberspace, Cambridge, Mass: MIT Press, 2002
    TK5105.875.I57M845 2002

    The classic book-length history of the management of the system of names and numbers on the Internet, focused on a deep analysis of the process that gave rise to ICANN in the late 1990s.

  • Goldsmith, Jack L. and Tim Wu, Who Controls the Internet? Illusions of a Borderless World, New York: Oxford University Press, 2006.
    HM 851 .G65 2006

    Relatively little of this book is devoted to name-space issues, but its third chapter is a fascinating account of formative conflicts in early (pre-ICANN) management of Internet domain name management.

  • Mathiason, John, Internet Governance: The New Frontier of Global Institutions, London: Routledge, 2009
    TK5105.875.I57 M3678 2009

    Chapters 4 and 6, particularly, cover name-space issues (the formation of ICANN and the current operation of ICANN, respectively).

  • Mueller, Milton L., Networks and States: The Global Politics of Internet Governance, Cambridge: MIT Press, 2010
    TK5105.875.I57 M8445 2010

Background Articles on ICANN and DNS

  • Susan Crawford, The ICANN Experiment, 12 Cardozo J. of Intl. & Comp. Law 409 (2004).
  • A. Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L. J. 17 (2000).

    Includes an account of how the U.S. government came to possess the original authority over the name root in the first place, and proceeds to argue that the attempt to vest that governance role in ICANN is a delegation of rule-making authority that violates both the Administrative Procedure Act and the Constitution.

  • The Future of Internet Governance (Panel Discussion), 101 Am. Soc’y Int’l L. Proc. 201 (2007).

    Discussion, moderated by Tim Wu, between ICANN board member Esther Dyson, law professor Michael Froomkin, David Gross of the U.S. Dept. of State, and Miriam Sapiro of Summit Strategies Internation.

  • A. Michael Froomkin, Almost Free: An Analysis of ICANN‘s ‘Affirmation of Commitments,’ 9 J. On Telecomm. & High Tech L. 187 (2011).

    An analysis of the 2009 revision of the arrangement between ICANN and the U.S. Department of Commerce, which aimed to further the transition of control of the DNS into the ‘privatized’ hands of ICANN. Includes a post-script addressing the recent conflict between ICANN and the Dept. of Commerce over the increase in gTLDs.

New gTLDs and Domain-Name/Trademark Issues

  • J.D. Lipton, Bad Faith in Cyberspace: Grounding Domain Name Theory in Trademark, Property, and Restitution, 23 Harvard J. of Law & Tech. 447 (2010).

    Not strictly focused on the forthcoming namespace expansion, this is the one of the author’s several works on domain name issues recent enough to take full account of the gTLD expansion.

  • Christine Haight Fairley, Convergence and Incongruence: Trademark Law and ICANN‘s Introduction of New Generic Top-Level Domains, 25 J. Marshall J. Computer & Info. L., 626 (2009)

    Focuses on (and critiques) those recommendations in the draft final report of the Generic Names Supporting Organization (ICANN‘s sub-group for policy work on the gTLDs) that adopt trademark-law concepts. In particular, Prof. Fairley argues that gTLDs are very different, for trademark-related purposes, than second-level domains.

  • Brian W. Borchert (student note), Imminent Domain Name: The Technological Land-Grab and ICANN‘s Lifting of Domain Name Restrictions, 45 Val. U.L. Rev. 505 (2010-2011)

    Discusses the approaches to abusive domain name registration, the likely impact of ICANN‘s policy of expansion of the domain name space.

  • Dennis S. Prahl and Eric Null, The New Generic Top-Level Domain Program: A New Era of Risk for Trademark Owners and the Internet, 101 Trademark Reporter 1757 (2011).

    Practical elucidation of the process that new gTLD applicants will have to navigate, and of the available options to oppose particular new gTLDs. Also includes a detailed account of the organized opposition (e.g. by the Association of National Advertisers) to the new gTLDs.

  • Look for a forthcoming post to include a bibliography and guide to the regime for managing domain name disputes and contested domain-names, for trademark and other reasons

ICANN Materials

ICANN web portal for new gTLDs, including materials for potential registry applicants: http://newgtlds.icann.org/en/

DNS Control and Intellectual Property

Look for a forthcoming post on the SOPA and PIPA anti-piracy legislation to include a short list of articles and commentary on the implications of DNS management for control of copyright and other intellectual property (beyond the trademark issues mentioned above).

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