Developmental Aspects of the Internet:
The Last Gasp of Colonialism, or Imperialism by Other Means?

Richard Hill*, July 2013

The word version of this paper is available at:
http://www.apig.ch/news.htm

Abstract

It is undeniable that the Internet has transformed telecommunications in recent years, and it has also had very beneficial effects on national economies and on international trade.  However, the benefits have not been distributed evenly around the world: developed countries have benefited relatively more, as have some of their major private companies. 

This paper reviews briefly the history of Internet and its governance, points out that the US government still exercises some (at least nominal) control over some aspects of the Internet, and links that to the well-known historical phenomena of colonialism and imperialism.  The paper argues that a new form of imperialism, techno-imperialism, is conflated with traditional political imperialism for what concerns Internet governance.

The paper concludes that new Internet governance models should be envisaged so as to achieve true democratic and multi-lateral Internet governance.

1. Introduction

Empires have always striven to improve communications: early well-known examples are Roman roads[i] and the message system of the Mongol empire[ii].  With the advent of telegraphy, empires started to use telecommunications, and actively pursued international telecommunication policies that were in their interest[iii].

During the twentieth century, there has been a long-term shift in geopolitical power first from Europe towards the United States and the former Soviet Union, more recently towards the so-called BRICS (Brazil, Russian Federation, India, China, and South Africa).  That shift resulted in the demise of the former European colonial empires and a rise in the competing ideological and economic empires comprised respectively by the United States and its allies and the Soviet Union and its allies.  Following the demise of the Soviet Union, the United States was left as the most powerful military and economic force in the world.  Not surprisingly, US dominance is also reflected in today’s dominant telecommunications technology, the Internet[iv].

2. A Short History of the Internet

It is worth recalling that the invention and early deployment of the Internet[v] were funded by the US Defence Department Advanced Projects Agency (DARPA), in competition with the parallel developments of comparable technologies under the Open Systems Interface (OSI) umbrella[vi]; the OSI work was carried out by private companies (former telecommunications monopolies and their captive manufacturers, together with computer companies, in particular those competing against the dominant company of the time, International Business Machines (IBM)).

Subsequently, deployment of the Internet was funded in the US by the National Science Foundation (NSF) and in Europe by various academic funds.  That is, the invention and the early deployment were primarily funded by governments.

An important component of the Internet, the world-wide-web, was invented in Geneva, Switzerland, by an English national working for an inter-governmental organization[vii].

Commercial use of the Internet was allowed starting in 1995.  Not coincidentally, this is when public discussions started regarding Internet governance[viii]. 

3. A Short History of Internet Governance

It is important to note that the early discussions regarding Internet governance were focused on reducing the historical role of the US government and on finding multi-lateral solutions, and these discussions were carried out in a manner that would subsequently be referred to as multi-stakeholder.

However, the US government did not accept the results of that multi-stakeholder consultation, precisely because it envisaged a multi-lateral approach to Internet governance, and so the US government unilaterally imposed an alternative approach, based on US entities which were bound by contracts or agreements with the US government, in particular the Internet Corporation for Assigned Names and Numbers (ICANN)[ix].

It should be noted that, when ICANN was first envisaged, it was not intended to be multi-stakeholder.  The US statement of policy that resulted in the creation of ICANN states[x] that the transition from management by contractors of the US government to what became ICANN should “allow the private sector to take leadership for DNS management” and “national governments now have, and will continue to have, authority to manage or establish policy for their own ccTLDs”.

Despite the promise made in 1998, the US government has never relinquished its role as the ultimate authority for the management of critical Internet resources.[xi]  Indeed, the existence of this role has been openly acknowledged in an analysis prepared for the US Congress, which raises as a point to consider[xii]: “Should the U.S. government maintain its current legacy authority over ICANN and the DNS [Domain Name System], and if so, how can NTIA [National Telecommunications and Information Administration, an agency under the US Department of Commerce] best use this authority judiciously in order to advance U.S. government interests, while at the same time minimizing the perception by other nations (as well as the international community of Internet stakeholders) that the United States has an inappropriate level of control or influence over the Internet and the DNS?”.

4. Perceptions of the US role

Not surprisingly, not all countries are comfortable with the role played by the United States with respect to Internet governance.

As a former senior US official put the matter[xiii]:

Defence of status quo is perceived as saying the US created the Internet, the US controls the Internet, US corporations profit disproportionately from the Internet, US security services have privileged access to everything that traverses the Internet.  … Internet has become a mechanism of overarching importance for every country in the world, both in terms of economic activity, but also for social, political and cultural considerations.  Yet for many countries there is no reliable modality that permits them to influence, let alone to control, what happens … The content conveyed over the Internet largely reflects US legal and cultural sensibilities, which sensibilities are not universally shared.   … Cybersecurity is a large and growing problem, and there is very substantial uncertainty on the part of many countries regarding how to address these cybersecurity issues.

Western countries prefer the status quo.  … There are countries such as Brazil and India and India that have a whole set of concerns about the Internet.  They need it, they want it to work for them, they also feel rather acutely that they don’t have nearly as much influence about how the Internet may evolve as their position in the world entitles them to.  These are countries that have a strong preference for bringing issues to the UN and having them resolved in that framework.

Note the mention of a perception that US security services have privileged access to everything that traverses the Internet; this is apparently a reality, not just a perception.[xiv]

A well-known Internet technologist expressed  thoughts broadly similar to those expressed above[xv]:

“Its true that a number of critical elements of the Internet's infrastructure, including the IANA function of oversight over the Internet's names and addresses remains a contracted activity with direct oversight by an agency of the US government. It's also reasonable to observe that over the past 14 years or so the US Government's hold over this function has tightened rather than relaxed, and what might have been a vague intention to pass this function over to an industry-based self regulatory private sector body at some indefinite time in the future has transformed to a grim determination never to relinquish reserve control of these functions.  On the other hand, many nations see the role of a single nation state in this global communications system as anomalous and threatening, and would prefer to see control be placed in the hands of an international treaty body that specializes in international telecommunications, namely the ITU. They see the US as exerting an undue and improper level of influence and control and would like to see this function be more accessible to other nation states on a peer basis.”

But the criticism is not limited to ICANN and the management of critical resources (names and addresses).  It is also related to the general dominance by US companies of many key sectors of information and communication technologies (ICTs).  As the same technologist put the matter[xvi]:

“They [developing countries and Brazil, Russian Federation, India, China, and South Africa (BRICS)] evidently see the dramatic explosion of online content as services as a form of colonial exploitation, where a small number of enterprises, located predominately in the United States, were engaged in global enterprises with little or no constraint or balance, and the result was once more a form of technological exploitation where the benefits of this global network were flowing into a single national economy and everyone else was paying.  Individual national interests were effectively powerless to stand up to this new international cartel, and it would only be through collective action undertaken by many nation states would some form of balance be restored.”

A similar thought has been expressed by the former senior US official cited earlier[xvii]:

“The foundation for international cooperation continues to be the nation-state.  We have adhered to the agreements that were reached in Westphalia in 1648, and we continue to do that.  It is not something that is going to go away any time soon.

“…

“For many countries, the United Nations and its organizations are the central place where they want to go to resolve issues and the one-nation one-vote aspect of those organizations is important.”

A well respected academic summarized the situation as follows[xviii]:

“Calls for US leadership, however, must take into account the fallout from the NSA surveillance revelations [Prism], the continuing irritant of US control of the IANA contract, and the broader perception among some countries that multi-stakeholderism is merely a cover for U.S. dominance of the whole domain.”

5. The real issue

But for most developing countries the real issue is not whether or not the US is exercising an asymmetric role, but whether the results of the current Internet governance model are consistent with the aspirations of developing countries.  As the cited former senior US official put the matter[xix]:

“There are many countries for which the big issue is development.  Whether or not there are ways to approach Internet governance to expand broadband networks, to improve the cybersecurity environment, and a range of development issues that they would like to see improved.”

Indeed, there has been considerable criticism of the current model[xx] with respect to development issues.  In particular, the cost of international Internet connectivity is too high, in relative terms, for developing countries.[xxi]

At present, it is disputed whether the current financial arrangements for the Internet will result in sufficient return on investments to finance the rollout of sufficient new infrastructure[xxii].

The Internet is based on a “receiver pays” model.  This model applies at two levels: at the level of the end-user, and at the level of the international interconnection.

There is general agreement that it is logical for an end-user to pay for something that he or she asked for, for example a video; but there is some question regarding whether the provider of the content should also pay, for example if it wishes to ensure the speed of transmission of its content (this is the “net neutrality debate”).

But “receiver pays” also applies to international interconnections at the wholesale level, and developing countries have long taken the view that it penalizes them, because these countries produce little content and access much content, so they use proportionately more international bandwidth.[xxiii] 

Fundamentally, it is obvious that, in a “receiver pays” system, a relatively poor country will obtain less information than a relatively rich country, simply because the relatively poor country has less money to spend.

One might take the view that there is nothing wrong with this: after all, nobody thinks that everybody should drive luxury cars.

On the other hand, one might take the view that access to what is undoubtely the world’s fundamental communication and information system (the “free and open Internet”) should be made available to all at prices they can afford.

So the question becomes how to address the fact that (1) for people in developing countries Internet access is relatively less affordable than it is for people in developed countries; and (2) people in developing countries have relatively less access to Internet than they do to mobile telephones, again when compare to people in developed countries[xxiv].  That is, how can we make Internet as available as voice services provided by mobile phones?

Some take the view that liberalization will achieve this goal[xxv].

Others point out that liberalization has not had the desired effects in some countries[xxvi].

It is not disputed that developing countries have questions and legitimate concerns[xxvii].  And it cannot be disputed that discussions on the topics outlined above should continue.

Thus the question is: in which forums should the discussions take place?

6. The multi-stakeholder approach

Because the Internet is different from other networks, its governance is not the same as that of other networks.[xxviii]  In particular, certain aspects of the Internet are not regulated by governments and they are governed by a variety of private sector organizations which are open to a broad range of participants, including in some cases governments.  This situation is often referred to as “the multi-stakeholder model”, which has been defined as engaging “technologists, the private sector and civil society in a bottom-up, consensus driven approach to standards setting, Internet development, and management” [xxix].  It has been said that Internet governance matters call for open multi-stakeholder participation in an open dialogue that directly reflect the diversity of the interests and activities that collectively form the Internet itself.[xxx]  That is, it is argued that that no particular Internet governance matter should be decided except by multi-stakeholder bodies. [xxxi]

Taken literally, this means that the World Intellectual Property Organization (WIPO) should not decide online copyright or patent matters, unless one takes the view that those matters are not related to Internet governance.  But this is rarely argued.  Indeed, the US explicitly argues the contrary, namely that the WIPO treaties should be applied to the Internet[xxxii] and the US, the European Union, and Australia argue that the World Trade Organization (WTO) is competent to make certain decisions regarding the Internet[xxxiii].  And nobody has (at least yet) argued that the US Department of Commerce, the US Congress, the European Commission, the Council of Europe, or the European Parliament should not discuss Internet governance matters because those institutions are not multi-stakeholder institutions.

Rather, what is really being argued is that certain particular Internet governance matters should be decided by multi-stakeholder bodies.  Perhaps not coincidentally, the matters in question are those that are handled by the existing prominent Internet bodies such as ICANN, IETF, W3C, and the Regional Internet Registries (RIRs).

Also perhaps not coincidentally, the bulk of the organized political support for this view comes from countries whose companies and citizens participate intensively in the work of those bodies.[xxxiv]  There is nothing new in this: opposition to inter-governmental agreements was explicitly stated as early as 1949 by the US operator AT&T[xxxv].

Indeed, in a multi-stakeholder model private companies are able to intervene at multiple levels: within some components of the multi-stakeholder model (including goverments) and directly as private companies.  Thus it is not surprising that most private companies favor the multi-stakeholder model.[xxxvi]

And of course the most important private companies active in providing Internet products and services are located in developed countries.

7. Is this colonialism?

Colonialism can be defined as a policy by which a nation maintains or extends its control over foreign dependencies.  One of the motivations for colonialism is the economic exploitation of the dependencies. [xxxvii]  It should be noted, however, that the wealth extracted from the dependencies is not necessarily evenly distributed amongst the citizens of the colonizing nation.[xxxviii]

In this sense, an insistence on US (or developed country) control of Internet governance is indeed an example of colonialism (including at times the denigration of ability of developing country representatives to understand the issues and to take appropriate decisions on their own).  Thus it is not surprising that the most vocal advocates of changes to the current approach are the most powerful developing countries: Brazil, China, India, Russian Federation, and South Africa.

Imperialism can be defined as the policy of extending a nation’s authority by territorial acquisition or by the establishment of economic and policy authority over other nations.

The current Internet governance model fits well into this definition: it allows the US to enforce rather easily its domestic policies, at times with extra-territorial effects.  For example, the US could easily seize domain names used for well-known poker sites, because those domain names are provided by US entities. [xxxix]  The seizure prevented people outside the US from using those sites (the sites were later restored with the stipulation that they could not be accessed from within the US).  Another example is provided by the Prism surveillance program, whose implementation was facilitated by the fact that key Internet companies are US entities[xl].  (Requests for surveillance of US citizens are apparently subject to approval by an independent judge, whereas apparently such approval is not required for surveillance of non-US citizens.  If this is correct, then Prism is an example of the well-known tendency of empires to accord special rights to their own citizens[xli]).

Apparent agreements between the US and Europe to share information on Prism[xlii], and between the US and the Russian Federation to cooperate to improve ICT security[xliii], are not likely to alleviate perceptions of continuing colonialism and imperialism, especially given the US refusal to agree to any language regarding cooperation on security matters during the World Conference on International Telecommunications (WCIT)[xliv].  And an apparent US intent to conduct offensive cyberwarfare activities[xlv] is also not likely to alleviate perceptions of imperialism.

Further, the current Internet governance model allows US entities to influence the economic and policy authority of other nations (and indeed even, to some extent, of the US itself[xlvi]).  Indeed, the flow of funds of Internet traffic is less favorable to developing countries than was the flow of funds of traditional voice traffic prior to liberalization.  The ITU estimates that, in the period 1993-98, the net flows of settlement payments from developed counties to developing ones amounted to some US$40 billion.[xlvii]  Due to the shift away from the traditional accounting rate system, and reductions in rates, the net flows of settlement payments from developed to developing countries decreased significantly, and may even have turned in the other direction.[xlviii]  In particular, various unilateral actions by the United States were viewed as resulting in a net flow of revenues from developing countries to developed countries, in particular to the US (that is, taking from the poor to give to the rich).[xlix]  As one author puts the matter:[l] “the existing economic mechanisms in international communications networks establish the financial flows in favor of the developed countries”.

In this light, it is not surprising that, as the cited Internet technologist[li] puts the matter:

“The US government sees this [control of IANA] as a necessary part of their stewardship of the multi-stakeholder model of a free and open Internet.  Their stated concern is that were they to pass control over to an international organization then it's a distinct risk that this organization would be captured by hostile national interests and the consequent risk, as they state it, is that the open nature of the Internet would be destroyed.  The US is not alone in this view and many other countries perceive the potential of a similar form of threat and see the US role as either a positive force or, at worst, they see this as the lesser of many potential evils.”

It is worth noting at this point that there is little transparency regarding the financial flows for Internet traffic, because the bulk of the traffic is carried under “peering agreements” that are zero-cost arrangements between the concerned operators.[lii]  Thus, today’s prevalent telecommunications technology is largely run as a barter economy, unlike any other important infrastructure.  One can wonder whether this contributes to the relatively unfavorable situation of developing countries with respect to Internet access.  As stated in Supplement 2 to Recommendation ITU-T D.50 (forthcoming):

“Some take the view that the mechanisms to be established [to implement D.50] must take into account the costs engendered by the activities of the various players in the value change, in particular regarding investment costs.  From this point of view, the full set of users of the international Internet interconnection (IIC) infrastructure should each bear a portion of the cost, according to its use of the infrastructure.[liii]

“In this way, each player will contribute to financing the cost of the infrastructure in an objective matter, and will contribution to the development and deployment of the IIC infrastructure , and will thus contribution to reducing the digital divide between the North and the South.[liv]

“…

“There are a number of reasons for the cost of Internet connection. The first and most important is still the cost of international Internet bandwidth. The tariffs for connection between Africa and Europe bear no comparison with the much lower charges applied between Europe and North America or even between Asia and Europe. These high tariffs are the result of an absence of competition in the international Internet connection market and of the current Internet interconnection model.[lv]

“In particular, the cost of international Internet connection is too high in sub-Saharan Africa compared to the rest of the world. The market is in the hands of a limited number of commercial groups which include the major operators, former incumbent operators and various financial consortia.  This market is somewhat non-transparent and monopolistic.”[lvi]

In addition to the economic domination, there is also a tendency for the developed countries to impose certain policy choices on developed countries.  For example, at the 2012 World Conference on International Telecommunications (WCIT), developed countries strongly objected to a proposal to include the following in the International Telecommunications Regulations (ITRs):[lvii] “Member States may seek information on the international route of their traffic, where [technically, financially and legally] feasible. Member States shall cooperate - consistent with their national laws [and respective international obligations] - to provide this information to the Member State concerned.”  As a result of those objections, no such text was included in the ITRs.

Objections to the inclusion of such a provision included statements to the effect that it could lead to violations of freedom of speech.  Further, at WCIT developed countries strongly opposed proposals from developing countries to include provisions in the ITRs regarding cooperation on improving on security and combating spam, again, on the grounds that such provisions could threaten freedom of speech. 

But in fact the provisions in question could not threaten freedom of speech; on the contrary, cooperation on such matters is more likely to preserve freedom of speech.[lviii]  Indeed, as noted above, the US has acknowledged that it unilaterally monitors certain foreign Internet traffic.[lix]  Thus one might wonder whether the strong US resistance to inclusion in the ITRs of an article regarding cooperation on security matters was motivated by a desire to be able to carry out unilateral monitoring without any constraints, which is something that some proponents of the Internet consider to be undesirable[lx].  In the absence of cooperation, countries have greater freedom to implement domestic restrictions and surveillance.[lxi]

Indeed, some commentators have suggested that the revelations of such unilateral US actions might increase calls for changes in the current Internet governance structures.[lxii]  As one journalist put the matter[lxiii]:

“The fact that the Americans and the British are apparently employing surveillance techniques not dissimilar to the Russians and Chinese makes a laughing stock of their otherwise admirable policy of promoting free expression and an open internet around the world.  One can already hear the chortles of President Putin. One can only imagine the schadenfreude of the Chinese president, Xi Jinping, as he met Barack Obama in California last weekend.

“What is needed is a determined effort to bring international human rights law up to date to meet the many, and changing, opportunities and dangers posed by the internet. …”

8. Is there also techno-imperialism?

In addition to the economic and policy domination noted above, there is also a certain imposition by developed countries of technical norms on developed countries.  This imposition arises because the entities that produce the technical norms used for the Internet are developed in organizations (such as IETF and ICAN) that are open to direct participation by individuals;[lxiv] however, there are barriers to participation in those organizations, including the ability to speak English, to travel, and having sufficient technical knowledge, and indeed some of those organizations have been criticized as lacking the consensus of a sufficiently broad community[lxv]. 

Further, certain key norms are developed by private companies and imposed de facto without formal input from users (apart of course from the input that arises when users refuse to use a particular product or service).  In competitive markets, this is normal: consumers vote with their feet and no other form of input is required.  But not all Internet markets are competitive, and norms developed by individual companies appear to be growing in importance.[lxvi]  Indeed, the European Comission is investigating whether the leading search service provider has a dominant position and promotes its specialized search services in a way that unduly diverts traffic away from its competitors, thus abusing its dominance.[lxvii]

As a well respected technologist puts the matter (in the context of a discussion regarding the slow rate of the transition to IPv6)[lxviii]:

“We are witnessing an industry that is no longer using technical innovation, openness and diversification as its primary means of propulsion. … Today's internet is serviced by a far smaller number of very large players, each of whom appear to be assuming a very strong position within their respective markets. The drivers for such larger players tend towards risk aversion, conservatism and increased levels of control across their scope of operation. The same trends of market aggregation are now appearing in content provision, where a small number of content providers are exerting a dominant position across the entire Internet.”

Since the individual companies concerned are developed country companies, and since developed country companies still largely influence the discussions in the various norm-setting bodies, one can coin a new term “techo-imperialism” to refer to a policy by which a group of private companies maintains or extends its control over economic and policy matters by controlling the development and use of certain technologies.  Reliance on intellectual property rights such as copyrights, patents, and trade secrets are some of the means used to exercise such control[lxix].

Such techno-imperialism is not motivated just by the economic interests of private companies, it is also motivated by the sincere belief of some technologists that they know best what should be done[lxx].  Unfortunately, the record shows that the choices made by the technologists are not always the ones best suited to real-world applications.[lxxi]

Indeed, in general, technologies such as printing, railroads, steam-powered ships, gasoline-powered automobiles, airplanes, etc. have affected the real world, but they have in turn been influenced and constrained by the real world (for example, restrictions are imposed to ensure safety, to reduce pollution, to facilitate law enforcement, etc.).  Thus it would seem reasonable to expect that non-technologists might wish to impose restrictions on the Internet technologies.

It is not surprising that technologists resist calls for such restrictions; what is less obvious is why developed countries tend also to resist such calls.  A possible explanation is that the interests of the technologists are conflated with the economic and policy interests of the developed countries, so that traditional colonialism is conflated with techno-imperialism.

9. The way forward?

If indeed we are in a situation akin to colonialism, and if we accept that this situation is not desirable (because it is obviously not consistent with the democratic ideal that is widely accepted world-wide at present), then we should seek ways to change the situation.

Various steps can be envisaged to encourage discussion of changes:

1. Accept the discussion, rather than refuse it (WCIT and WTPF both provide good examples of refusal to discuss the situation, as do numerous other meetings)/
2. Accept discussion of the fundamental issues, rather than peripheral issues on which there isn’t much disagreement (for example, at WTPF there was much discussion of the role of Internet Exchange Points (IXPs) but no discussion of the Internet financial flow issues summarized above, and no discussion of the fundamental issue: how to subsidize access for people who live in low-income, low-density geographical areas such as much of Africa and the Pacific Islands[lxxii]).
3. Accept comparison with other infrastructures, in particular the mobile telephone infrastructure.[lxxiii]  As noted above, usage of this infrastructure has grown more rapidly than has usage of the Internet[lxxiv].  Perhaps this difference in growth is at least partly related to the fact that the governance of the GSM infrastructure is rather more traditional than the governance of the Internet infrastructure (or perhaps not, but the matter should be discussed seriously, and not dismissed out of hand).
4. Seek an agreement that gives equal rights to all countries, that is, address the current asymmetric role of the US government.

Regarding point 4 above, one solution could be that the US relinquishes its current privileged role, with the existing structures remaining as they are.  That is, there would be no new formal agreements involving governments, and the current contracts and agreements with the US government would be discontinued.

Another solution could be “back to the future”: developing a multi-stakeholder multi-lateral memorandum of understanding similar to the one originally proposed in 1997[lxxv].  For convenience that document is reproduced in Annex 1 of this paper.

Another historical proposal was presented by Syria to the 3-4 May 2005 meeting of the ITU Council Working Group on WSIS.  After describing issues very similar to the ones described above, Syria proposed to replace the current role of the US Department of Commerce with the ITU, and in particular that there should be a Memorandum of Understanding between ITU and ICANN.[lxxvi]

More recently, it has been proposed to consider discussing proposals to[lxxvii]:

a)                  Establish a mechanism to internationalize the monitoring responsibilities in respect of the Internet Corporation for Assigned Names and Numbers (ICANN), which is currently the responsibility of a single country.

b)                  Take steps towards transforming the Internet Corporation for Assigned Names and Numbers (ICANN) into an international organization, subject to international law, and for that purpose, sign an agreement with the host country.  

c)                  Establish an intergovernmental mechanism enabling governments, on an equal footing, to carry out their role and responsibilities in international public policy issues pertaining to the Internet.

One can also consider a federated model, with much greater diversity than the present model, that it, separate networks that interconnect in specific ways.[lxxviii]

At some point, the various options presented above should be discussed seriously, with the understanding that the status quo is not considered satisfactory by all.[lxxix]

As suggested elsewhere[lxxx], the ITU would appear to be a proper forum in which to conduct some of those discussions.

Annex 1

gTLD-MoU - February 28, 1997

ESTABLISHMENT OF A MEMORANDUM OF UNDERSTANDING ON THE GENERIC TOP LEVEL DOMAIN NAME SPACE OF THE INTERNET DOMAIN NAME SYSTEM (gTLD-MoU)

The Internet Community (1997)

Considering, 

that the Internet Domain Name System (DNS) was designed for locating machines on the Internet by mapping between human-friendly mnemonic names and their underlying (IP) addresses;

that the DNS is an essential component of the Internet's operational infrastructure and that for operational efficiency of the DNS and protection of the interests of current and future users of the Internet domain name space, DNS names need to be created, managed and administered in a fair, stable, systematic and equitable method.

Conscious, 

that the growth of the Internet has produced a requirement for enhanced DNS assignment and management procedures;

that the management and administration of the DNS raises significant public policy issues that include, inter alia, appropriate and equitable allocation of global name resources, market supply and access to DNS registration services, and intellectual property concerns;

that these issues require significant improvements to the administration and management of the DNS.

Recognizing, 

the unique characteristics of the Internet and the dynamics of its rapid decision-making processes that have facilitated its development;

the responsibilities that the Internet Assigned Numbers Authority (IANA), the Internet Society (ISOC), and other related Internet administrative bodies, according to their respective roles and competencies, have in creation and administration of the DNS;

that, at the initiative of the Internet Society, and at the request of the Internet Assigned Numbers Authority (IANA), the International Ad Hoc Committee (IAHC) was formed and tasked with developing recommendations for enhancements to the administration and management of Internet Top Level Domains.

Is of the view, 

that there is a need to institute enhancements in the management and administration of the DNS, particularly related to global name resources, i.e., the generic Top Level Domain (gTLD) name space;

that the current and future Internet name space stakeholders can benefit most from a self-regulatory and market-oriented approach to gTLD name space registration services;

that this market-oriented approach to registration services for the gTLD name space should also provide for a global distribution of registrars;

that, for the gTLD name space, the most appropriate international policy framework would be the establishment of a self-regulatory structure under a voluntary Memorandum of Understanding (MoU);

that such a self-regulatory structure should be capable of evolving over time to accommodate changed circumstances;

that both public and private sector entities should be invited to voluntarily sign the MoU;

that the MoU provide for a policy oversight committee, comprised of individuals who are recognized as collectively knowledgeable and expert in the related issues, who shall provide the necessary public policy oversight functions following practices and norms applying to those serving a public trust function;

that the MoU have a formal mechanism for signatories, drawn from the widest possible range of Internet stakeholders, to advise the policy oversight committee on general policy matters relating to gTLDs and the DNS;

that the inclusion of a broad range of policy input, however, should not impede the ability of the self-governing structure to take timely decisions, having respect for the dynamics of the rapid decision-making processes that have facilitated Internet development;

that the Final Report of the International Ad Hoc Committee (IAHC), dated February 4, 1997, contains reasonable recommendations toward accomplishing these objectives.

Also recognizing, 

that pursuant to the basic provisions of the Constitution of the International Telecommunication Union (ITU), the roles and functions of the ITU include:

• the maintenance and extension of international cooperation between all Member States and Sector Members of the Union for the improvement and rational use of telecommunications of all kinds;
• promotion of the development of technical facilities and their most efficient operation with a view to improving the efficiency of telecommunication services, increasing their usefulness and making them so far as possible generally available to the public;
• promotion of the extension of the benefits of the new telecommunication technologies to all the world's inhabitants.

Requests that the Secretary-General of the ITU, 

circulate the gTLD-MoU to the relevant public and private sector entities with an invitation to sign, if they so wish;

act as the Depository of the gTLD-MoU and publish periodically an updated list of signatories;

facilitate further cooperation in the implementation of the gTLD-MoU, and;

Strongly encourages, 

the relevant public and private sector entities to sign the gTLD-MoU;

the Signatories to participate actively in its full implementation.

MEMORANDUM OF UNDERSTANDING ON THE GENERIC TOP LEVEL DOMAIN NAME SPACE OF THE INTERNET DOMAIN NAME SYSTEM (gTLD-MoU)

the Signatories to this Memorandum of Understanding ("gTLD-MoU") hereby agree to voluntarily cooperate, according to their respective roles and competencies, as follows.

The Signatories agree:

I. GENERAL

SECTION 1. - Definitions

the following definitions are used:

1. "Domain Name System" ("DNS") means the Internet naming system as defined in RFC 1591;
2. "Top Level Domain" ("TLD") means the highest level of domain name hierarchy as defined in RFC 1591;
3. "Second Level Domain" ("SLD") means the level of domain names immediately below the TLDs;
4. "Generic Top Level Domains" ("gTLDs") means the TLDs ".com", ".org", ".net" as defined in RFC 1591, and those TLDs established in or under the auspices of Signatories to this MoU;
5. "Registry" means those roles and activities involved in the administration of a TLD in the Domain Name System, and encompasses all of the services needed for assignment and maintenance of that TLD and its registrations;
6. "Registrar" means the entity which is authorized to enter and modify the Second Level Domain (SLD) data maintained by a Registry, in response to requests by entities seeking to be assigned a SLD;
7. "Council of Registrars" ("CORE") means the operational organization composed of authorized Registrars for managing allocations under gTLDs;
8. "CORE-gTLD" means any gTLD that is, at a given time, subject to the provisions of this MoU;
9. "CORE-MoU" is the Memorandum of Understanding which defines CORE-gTLDs and policies under which CORE must operate;
10. "Administrative Domain Name Challenge Panels" ("ACPs") means the panels established under this MoU to entertain challenges by third parties to the allocation of SLDs.

SECTION 2. - Principles

The following principles are adopted:

1. the Internet Top Level Domain (TLD) name space is a public resource and is subject to the public trust;
2. any administration, use and/or evolution of the Internet TLD space is a public policy issue and should be carried out in the interests and service of the public;
3. related public policy needs to balance and represent the interests of the current and future stakeholders in the Internet name space;
4. the current and future Internet name space stakeholders can benefit most from a self-regulatory and market-oriented approach to Internet domain name registration services;
5. registration services for the gTLD name space should provide for global distribution of registrars;
6. a policy shall be implemented that a second-level domain name in any of the CORE-gTLDs which is identical or closely similar to an alphanumeric string that, for the purposes of this policy, is deemed to be internationally known, and for which demonstrable intellectual property rights exist, may be held or used only by, or with the authorization of, the owner of such demonstrable intellectual property rights. Appropriate consideration shall be given to possible use of such a second-level domain name by a third party that, for the purposes of this policy, is deemed to have sufficient rights.

II. SELF-REGULATORY FRAMEWORK

SECTION 3. - Bodies Relating To or Established Under this MoU

The self-regulatory framework under this MoU shall consist of:

• the Depository of the gTLD-MoU
• a gTLD Policy Advisory Body (PAB)
• a gTLD Policy Oversight Committee (POC)
• a Council of Registrars (CORE)
• Administrative Domain Name Challenge Panels (ACPs)

SECTION 4. - Depository

The Parties agree that the depository of this instrument shall be the Secretary-General of the International Telecommunication Union (ITU). The role of the Depository includes:

1. circulation of this MoU to relevant public and private sector entities representing a broad range of interests in the Internet gTLD name space including, inter alia, relevant Internet-related organizations and bodies, software publishers, operators and service providers, intergovernmental organizations, governmental or regional agencies and authorities, non-governmental organizations and manufacturers, with an invitation to sign, if they so wish;
2. to maintain and publish periodically an updated list of Signatories;
3. to facilitate further cooperation in the implementation of this MoU.

Signatories may sign at the invitation of the Depository or the gTLD Policy Oversight Committee (see Section 6).

SECTION 5. - gTLD Policy Advisory Body (PAB)

1. Signatories to this MoU may choose to voluntarily participate in a gTLD Policy Advisory Body (PAB) that periodically meets either in person or on-line.
2. The role of the Policy Advisory Body is to make recommendations to the Policy Oversight Committee (see Section 6) regarding general policy matters relating to gTLDs and the DNS and to advise the Policy Oversight Committee with respect to amendments to this MoU and the CORE-MoU.
3. The PAB shall apply rough consensus modes for determining its recommendations to the POC.

SECTION 6. - gTLD Policy Oversight Committee (POC)

1. A committee will be established to conduct oversight of CORE and CORE-gTLDs and to set policies for CORE and its Registrars consistent with this MoU, to be comprised of individuals and experts who are recognized as collectively knowledgeable and expert in the related issues in order to provide the necessary policy oversight functions.
2. This committee is the gTLD Policy Oversight Committee (POC) and follows practices and norms applying to those serving a public trust function.
3. No decisions of the POC shall be made unless a quorum of at least 67% of members are available or represented by proxy; decisions of the POC shall require a majority of not less than 67% of the total votes cast.
4. The instrument used to conduct oversight of CORE and CORE-gTLDs and to set policies consistent with this MoU is the CORE-MoU which is signed by POC and all CORE-gTLD Registrars.
5. POC defines the initial entry into force of the CORE-MoU by signing the CORE-MoU and no amendments may take effect until signed by POC.
6. The POC shall consult the PAB and CORE in carrying out its responsibilities.
7. Members of the Policy Oversight Committee (POC) will be appointed in the following numbers by each of the following groups and organizations; appointees are not necessarily members of the appointing groups or organizations.
1. Internet Assigned Numbers Authority (IANA) - 2
2. Internet Society (ISOC) - 2
3. Representative of the Depository of this MoU - 1
4. Internet Architecture Board (IAB) - 2
5. Council of Registrars (CORE) - 2
6. International Telecommunication Union (ITU) - 1
7. World Intellectual Property Organization (WIPO) - 1
8. International Trademark Association (INTA) - 1

Pending the creation of CORE, an interim Policy Oversight Committee (iPOC) shall consist of the regular (non ex-officio) members of the International Ad Hoc Committee (IAHC) which have been appointed by IANA, ISOC, IAB, ITU, WIPO and INTA. The iPOC shall dissolve when CORE appoints its representatives at its first plenary meeting at which time the groups and organizations listed above are invited to appoint their representatives.

1. The regular term of membership in the Policy Oversight Committee shall be three years, provided, however, that the initial terms of membership will be as follows so as to achieve staggered terms:
   
   
   1 year initial term - CORE, IAB, IANA, ISOC (one representative of each)
   2 year initial term - Representative of the MoU Depository, ITU, WIPO, INTA
   3 year initial term - CORE, IAB, IANA, ISOC (one representative of each)
   
   The above groups or organizations which have two representatives shall determine which of their representatives shall be appointed for which (1 year or 3 year) term of office. In addition, each group or organization shall endeavor to appoint its representative(s) with an intent to achieving equitable geographical distribution.
2. The Policy Oversight Committee shall coordinate with the CORE Executive Committee to ensure the enforcement of the requirement that each Registrar operate in all respects consistently with the requirements of this MoU and the CORE-MoU.
3. The Policy Oversight Committee may from time to time:
1. change the number of gTLDs and approve names of new gTLDs;
2. change the number of Registrars, provided that appropriate global geographic distribution of Registrars shall be preserved;
3. establish new terms and conditions for applications by entities desiring to become Registrars, including, among others, provisions for CORE to establish and collect fees for its registration and any other services it may perform in such amounts as it may from time to time determine;
4. recommend, to the PAB, amendments to this MoU, including but not limited to, changes in the composition of the Policy Oversight Committee;
5. following consultation with the PAB and CORE, remove Registrars who do not operate consistently with the requirements of this MoU and the CORE-MoU.

SECTION 7. - CORE

1. An operational organization composed of recognized Registrars for managing allocations under gTLDs shall be established under the name "Council of Registrars" ("CORE").
2. CORE will be established under the laws of Switzerland as a Swiss Association governed by Articles 60 - 79 of the Swiss Civil Code.
3. In order to act as a Registrar as defined by this MoU and have access to CORE-gTLDs, Registrars must be signatories to the CORE-MoU and be a member of CORE.
4. CORE shall establish and enforce requirements that each Registrar operate in all respects consistently with the provisions of this MoU, the CORE-MoU and decisions of the Policy Oversight Committee.
5. Each CORE-gTLD Registrar may assign second level domains (SLDs) in any gTLD, described or created under the provisions of this MoU and the CORE-MoU, on a fair-use, first-come, first-served basis.

SECTION 8 - Administrative Domain Name Challenge Panels (ACPs)

1. Administrative Domain Name Challenge Panels (ACPs) will be established to administer the policy stated in Section 2(f).
2. The procedures for creating the panels and for bringing challenges before the panels shall be defined in the CORE-MoU; in particular, the CORE-MoU shall stipulate that Registrars shall be obligated to honor all decisions of ACPs. The procedures for creating the panels and for bringing challenges before the panels shall be administered by the World Intellectual Property Organization (WIPO) Arbitration and Mediation Center (Geneva, Switzerland). WIPO staff shall not be members of any panel.
3. No decision of an ACP shall inhibit, affect or prevent the power of the appropriate national or regional courts to hear cases interpreting and enforcing intellectual property rights that fall within their jurisdiction. Likewise, nothing in this Section shall prevent any party, at any time, from bringing any case before such national or regional courts that could otherwise be brought, nor from initiating arbitration or mediation procedures that are otherwise available.

III. STRUCTURE OF THE gTLD-DNS

SECTION 9. - gTLDs

1. Effective upon the entry into force of this MoU, an additional set of gTLDs beyond the extant ".com", ".org" and ".net" gTLDs in the DNS shall be created by the iPOC [see Section 6(g)] and administered within the provisions of this MoU and the CORE-MoU.
2. If, in consultation with the PAB and CORE, the POC should later determine, that the interests of the users of the Internet would be best served by the creation of additional gTLDs within the DNS, beyond those created in (a) above, each additional gTLD, if any, shall be created and administered within the provisions of this MoU and the CORE-MoU. Each additional gTLD created shall consist of a three or greater character alphanumeric identifier.

SECTION 10. - TLDs Not Subject to the Provisions of this MoU

1. Pending the expiration or appropriate amendment of the Cooperative Agreement under which the ".com", ".org" and ".net" gTLDs are presently administered, the ".com", ".org" and ".net" gTLDs shall not be subject to the provisions of this MoU.
2. Likewise, until the ".com", ".org" and ".net" gTLDs are subject to the provisions of this MoU, the registrar which administers those gTLDs shall not be considered to be a gTLD Registrar for the purposes of this MoU.
3. The two-character top level domain name space within the DNS, which is reserved for ISO 3166 country codes under existing accepted Internet RFCs, shall not be subject to the provisions of this MoU.
4. All other top level domain names which are not explicitly included in the set of "generic" top level domains are not subject to the provisions of this MoU.

IV. ADMINISTRATIVE PROVISIONS

SECTION 11. - General Provisions and Review

1. Signatories to this MoU shall include, in any event, the Internet Society (ISOC), Reston, Virginia, U.S.A., and the Internet Assigned Numbers Authority (IANA), Marina del Rey, California, U.S.A.
2. This MoU shall enter into force from the date that it has been signed by both the Internet Assigned Numbers Authority (IANA) and the Internet Society (ISOC).
3. The Signatories agree to periodically review the results and consequences of their cooperation under this MoU and, when appropriate, consider the need for improvements in their cooperation, and make suitable proposals for modifying and updating the arrangements, and the scope of this MoU to the Policy Oversight Committee, through the Policy Advisory Body.
4. Amendments to this MoU shall be initiated by the Policy Oversight Committee, after consultation with the PAB and CORE.
5. No amendment to this MoU shall enter into force until it has been signed by both the Internet Assigned Numbers Authority and the Internet Society, and any such amendment shall enter into force on the date that it has been so signed.

V. SIGNATURES

Done in Geneva:

[date]


SIGNATORIES:

________________________________
Internet Assigned Numbers Authority

________________________________
Internet Society


________________________________
Etc.