European Commission Paper #5: ccTLDs and yet another power grab

The EC paper on country code top level domains (ccTLDs) contains

no new ideas; this paper, like the others, is intellectually lazy. It merely continues

a longstanding effort by national governments to assert property rights over domain

names that happen to refer to geographic territories, but without actually

going through a legitimate process to create an international treaty carefully defining and limiting such rights. As

usual, the EC’s primary concern is not the interest of the Internet-using

public or the health and vitality of the internet, but the privileges and

powers of itself and its member governments.

There are some legitimate concerns about how ccTLDs are

managed. One of the most important is why legitimate, recognized ccTLD registries

cannot make technical updates to their root zone entries directly. There has

been an incredibly long delay regarding these automated changes. But the EC

paper has little to say about this – and that is because it is the US government,

and its desire to retain operational control of the root zone, that is

responsible for the problem. The EC lacks either the insight or the courage to

address that problem, it would prefer to pick on ICANN.

The basic fallacy underlying the EC’s approach to ccTLDs –

and, unfortunately, that of many other governments as well – is their failure

to understand that the DNS root is a global, shared resource. Standard concepts

of exclusive sovereignty cannot be easily applied here. Creating ccTLDs – as with any

other domain name registry – requires both a delegation of responsibility to a

local, territorial actor and a globalized form of coordination and recognition by

the rest of the world. That is why is it false to claim that ccTLD policy is a

simple matter of sovereignty.

The sloppy thinking in the EC paper is best illustrated by

its appeal to the Tunis Agenda (TA) of the World Summit on the Information

Society.  It asserts blithely that “the

operation of such key Internet resources [is] a matter of national sovereignty,”

and quotes the WSIS TA:

“Countries should not be involved in decisions

regarding another country’s country-code Top-Level Domain (ccTLD). Their

legitimate interests, as expressed and defined by each country, in diverse

ways, regarding decisions affecting their ccTLDs, need to be respected, upheld

and addressed via a flexible and improved framework and mechanisms”

But this paragraph of the TA does not support the EC’s line

of argumentation at all. ICANN is not a “country,” it is a private corporation.

The whole idea behind ICANN was that by creating a private sector governance

agency we could avoid having one national government setting policy for the

whole world. If we are to have a coordinated root it is impossible for ICANN,

the global root administrator, to not

“be involved in decisions regarding another country’s ccTLD.” The Tunis Agenda is

actually a criticism of the U.S. government’s privileged role, not a criticism of

ICANN per se. The USG demands the right to unilaterally approve any

modifications to the root zone file proposed by ICANN. This arrangement, which

everyone knows ICANN would like to escape, gives one government (the U.S.)

control over the IANA. And yet the EC lacks the consistency, integrity

and courage to openly criticize the special U.S. role (probably because it

is trying to gang up with the USG to give states more control over ICANN).

The EC simply assumes that “public authorities” have a

property right over geographic names, despite the absence of any domestic or international

law or treaty that actually gives governments such rights. So it wants to turn

any proposed generic TLD involving a geographic name into a ccTLD. This is a

gigantic land grab in cyberspace. By this logic, for example, “Amazon.com,” or

Syracuse.com, a news site about our city which is not controlled by the city government and never had to get its approval, could never have been created. Consider

all the different languages and formulations that territorial, geographical

indicators can come in, and you are getting into really complex problems.

When it comes to ccTLDs, the EC wants the IANA to

play a purely technical role, but when it is discussing regulation of gTLDs in

the other papers, it wants IANA to be the cats paw for heavier regulation. The EC says, “To the greatest

degree possible, decisions about ccTLDs (including what strings are utilised,

who operates the registry and what policies the registry should follow besides

those set out by ICANN) should be made by the responsible public authority and

the local Internet community concerned and not by the IANA contractor.” What nonsense – the strings must be globally coordinated. But even if one overlooks that it is noteworthy that whenver the EC and its heavily-lobbied-by-trademark-interests-colleagues are

talking about gTLDs, they do not want to give registries any autonomy.  Clearly, the standard here is not a consistent

devotion to good policy or public interest, but simply the special interest of

the EC as a bureaucracy and of governments.

The EC wants to replace the simple policy that IANA “shall

act in accordance with the relevant national laws of the jurisdiction which the

ccTLD registry serves” with a much stronger, blanket command to do whatever a

local government wants:

“The Contractor shall act in accordance with the

relevant national laws of the jurisdiction which the TLD registry serves. In

addition, in relation to country-code Top Level Domains, the contractor shall

fully respect the relevant public authority in relation to the delegation,

redelegation and operation of the ccTLD [or the geographic gTLD] that operates

within its jurisdiction”.

So in the EC’s view, governments don’t even have

to pass laws, they just have to issue orders to control the disposal of a part

of a global resource. In this respect, their views are fully in line with those

of China and other dictatorships, which use the concept of sovereignty to shield

themselves from any unwanted information or activity that might come from the

global Internet. What happens when, say, a coup takes place in a country and the

new rulers, who have come to power illegitimately, suddenly demand that ICANN

give them control over the ccTLD just as they 

have seized control of the TV stations? The EC seems not to have even

given this a thought. In their view, whatever governments demand must be right.


Comments are closed.