<nettime> US DoC/ICANN/NSI agreement fact sheet with comments

[t byfield <tbyfield@panix.com>]

the US Commerce Dept, ICANN, and NSI announced a 'new agreement' today[1]
which supposedly will put to rest all that inconvenient squabbling. if you
were wondering who's in the driver's seat as far as DNS issues are
concerned, note the fact sheet's[2] (below)  flat-footed statement, which
confirms what michael froomkin said at the CPSR conference on 23-24
september: 

     * Nothing in these agreements affects the current arrangements
       regarding management of the authoritative root server. NSI will
       continue to manage the authoritative root server in accordance
       with the direction of the Department of Commerce. The Department
       of Commerce expects to receive a technical proposal from ICANN for
       management of the authoritative root and this management
       responsibility may be transferred to ICANN at some point in the
       future. The Department of Commerce has no plans to transfer to any
       entity its policy authority to direct the authoritative root
       server. 

the Commerce Department is, of course, the nominal authority on US crypto
policy as well.[3] it's safe to assume that USG policy regarding the net
is much more coordinated than the erratic path traced by various
announcements would seem to suggest, and with a very particular
slant--commerce--which tends to place severe strictures on what are
generally called 'civil rights.' and, no, i'm not assuming that everyone
in the world is a US citizen: these shifts will be translated to other
countries by a variety of means --as a blueprint, via relations between
corresponding agencies in national governments, through limited
representation in inter- national fora,[4] and so on. 

     [1] <http://www.ntia.doc.gov/ntiahome/domainname/agreements/>
     [2] <http://www.ntia.doc.gov/ntiahome/domainname/agreements/
          summary-factsheet.htm>
     [3] <http://www.bxa.doc.gov/>
     [4] <http://www.wipo.org/>, for example

so...cheers--

     if you like e-commerce, that is.

t

---
                                 FACT SHEET
   
   The resolution of issues among the Department of Commerce, the
   Internet Corporation for Assigned Names and Numbers (ICANN), and
   Network Solutions, Inc. (NSI) is embodied in five agreements (and the
   appendices to those agreements):

     * a Registry Agreement between ICANN and NSI
     * a revised Registrar Accreditation Agreement between ICANN and all
       registrars registering names in the .com, .net., and .org domains
     * a revised, post-testbed Registrar License and Agreement between
       NSI and all registrars registering names in the .com, .net., and
       .org domains (the license for the Shared Registration System and
       related purposes)
     * an amendment to the Cooperative Agreement between the Department
       of Commerce and NSI
     * an amendment to the Memorandum of Understanding between the
       Department of Commerce and ICANN
       
   The Department of Commerce and NSI have endorsed the package of
   agreements. ICANN's endorsement is subject to consideration of public
   comments. The agreements will be posted on ICANN's website today
   (www.icann.org/agreements.htm), and ICANN will receive comments for
   the next thirty days. The ICANN Board expects to make a final
   determination regarding this matter at its meeting on November 4,
   1999. The agreements will also be posted on the NTIA website at
   www.ntia.doc.gov and on NSI's website at www.networksolutions.com.
   Because the agreements are interrelated and together resolve the broad
   array of outstanding issues, the package of agreements will not be
   entered into until after the ICANN Board's final decision. The
   Department of Commerce and NSI have agreed to extend the testbed
   period until November 5, 1999, to allow for ICANN's public comment
   process.
   
   Following is a summary of the key issues addressed in these
   agreements:
   
   Operation of Registry for .com, .net, and .org Domains

     * NSI will recognize ICANN and agree to operate the registry in
       accordance with provisions of the Registry Agreement between ICANN
       and NSI and the policies established by ICANN in accordance with
       the terms of that agreement.
       
     * Beginning January 15, 2000, NSI as registry will charge registrars
       $6 per registration-year for the remainder of the term of the
       Registry Agreement. (The fee will remain at $9 until January 15,
       2000.) The fee may be increased to cover increases in the
       registry's net costs resulting from ICANN policies or from
       legislation specifically applicable to the provision of registry
       services.

     * NSI will agree to use its best commercial efforts to implement by
       January 15, 2000 modifications to the Shared Registration System
       that will (a) enable a registrar to accept registrations and
       renewals in one-year increments; and (b) enable a registrar to add
       one year to a registrant's registration period upon transfer of a
       registration from one registrar to another.

     * NSI will be contractually obligated to provide equivalent access
       to the Shared Registration System to all registrars accredited by
       ICANN (including NSI acting as a registrar) and to ensure that the
       revenues and assets of the registry are not utilized to advantage
       NSI's registrar activities to the detriment of other registrars.

     * The term of the Registry Agreement is four years from its signing.
       If ownership of NSI's registry and registrar operations is fully
       separated within 18 months, and the registry functions are
       performed by an entity that is not affiliated with a registrar and
       promises never to affiliate with a registrar, the term would be
       extended for four additional years. Department of Commerce
       approval is required for the transfer of NSI's registry operations
       and for the designation of a successor registry by ICANN.

     * Upon the expiration of the agreement, ICANN will conduct a process
       for selecting a successor registry, in which NSI may compete on an
       equal basis. If, during the term of the registry agreement, NSI
       fails to remedy its breach of the registry agreement it may be
       terminated as the registry for .com, .net, and .org.

     * NSI will continue to provide third parties bulk access to TLD zone
       files.

     * The Registrar License and Agreement has been modified to reflect
       various suggestions made by registrars during the testbed phase.

     * NSI will be entitled to establish its own prices for registrar
       services (the Cooperative Agreement currently requires NSI to
       charge $35 per year for those services).
       
   Exercise of ICANN's Authority

     * ICANN will be contractually obligated, to the registry and to all
       accredited registrars, to comply with specified procedural
       requirements governing the exercise of its authority. These
       include (a) definition of the consensus required for action by
       ICANN and specification of the procedure for reviewing ICANN's
       determination that a consensus exists; (b) a commitment to open,
       transparent, and pro-competitive processes; and (c) a prohibition
       against arbitrary, unjustifiable, or inequitable actions.

     * The agreements explicitly define the subjects within the scope of
       ICANN's authority with respect to both the registry and
       registrars.

     * ICANN's authority to set policy for the registry may be terminated
       if (a) ICANN breaches the Registry Agreement and fails to remedy
       that breach; (b) the Department of Commerce withdraws its
       recognition of ICANN; or (c) the Department of Commerce concludes
       that ICANN has not made sufficient progress towards entering into
       agreements with other registries and NSI is competitively
       disadvantaged. In the event ICANN's authority is terminated, the
       Department of Commerce will assume the policy-setting function for
       registry services for the .com, .net and .org top level domains.
       The same provisions regarding the term of the Registry Agreement
       will apply under Department of Commerce supervision.
       
   ICANN Funding

     * Registrar fees must be equitably apportioned and approved by
       registrars that account for payment of two-thirds of registrar
       fees. NSI has agreed that it will approve an ICANN registrar fee
       policy so long as its share of the registrar fees does not exceed
       $2 million.

     * gTLD registry fees must be equitably apportioned among gTLD
       registries. NSI has agreed to pay up to $250,000 in gTLD registry
       fees. Any gTLD fee structure that requires a higher payment by NSI
       must be approved by registries accounting for two-thirds of the
       gTLD registry fees.

     * Upon signing of the agreements, NSI would prepay $1.25 million
       towards its share of ICANN fees.
       
   WHOIS Data

     * All accredited registrars would be obligated to provide
       query-based access to registration data and would be barred from
       placing conditions upon any legal use of that data, except to
       prohibit use of the data to enable the transmission of mass
       unsolicited commercial solicitations via e-mail (spam) and to
       enable high-speed processes for applying for registrations.

     * All accredited registrars also would be required to provide
       third-party bulk access to registration data (subject to the
       restrictions discussed above) for an annual fee that may not
       exceed $10,000. This obligation would remain in effect until it is
       replaced by a different policy adopted by ICANN or a finding by
       the Department of Commerce that no individual or entity is able to
       exercise market power with respect to data used for development of
       third-party value added products and services.
       
   InterNIC

     * Within six months, the InterNIC website (as well as the
       internic.com, internic.org, and internic.net domain names) will be
       transferred to the Department of Commerce.

     * Until the transfer is completed, NSI will maintain the
       internic.net website as a public information site with a directory
       of accredited registrars for .com, .net, and .org, with hotlinks
       to those registrars.

     * Within nine months, NSI will modify all of its registration
       templates and otherwise migrate from the use of the term
       "InterNIC," or Internet addresses that reflect the term
       "InterNIC."
       
   Management of the Authoritative Root Server

     * Nothing in these agreements affects the current arrangements
       regarding management of the authoritative root server. NSI will
       continue to manage the authoritative root server in accordance
       with the direction of the Department of Commerce. The Department
       of Commerce expects to receive a technical proposal from ICANN for
       management of the authoritative root and this management
       responsibility may be transferred to ICANN at some point in the
       future. The Department of Commerce has no plans to transfer to any
       entity its policy authority to direct the authoritative root
       server.
       
                                 * * * * *
   
   Background
   
   On July 1, 1997, President Clinton issued A Framework for Global
   Electronic Commerce and directed the Secretary of Commerce to
   privatize the management of the domain name system ("DNS") in a manner
   that increases competition and facilitates international participation
   in its management. Following an extensive public consultation process,
   the Department of Commerce on June 8, 1998, issued a Statement of
   Policy entitled Management of Internet Names and Addresses (the "White
   Paper"). The White Paper called upon the private sector to create a
   new, not-for-profit corporation to assume responsibility, over time,
   for the management of certain aspects of the domain name system. The
   White Paper also articulated the fundamental policies that would guide
   United States participation in the transfer of DNS management
   responsibility to the private sector: stability; competition; private,
   bottom-up coordination; and representation.
   
   In October 1998, the Department of Commerce and NSI amended the
   Cooperative Agreement to facilitate the stable evolution of the domain
   name system in accordance with the White Paper and to introduce
   competition into the provision of registrar services in the .com, .net
   and .org domains. In November 1998, the Department of Commerce entered
   into a Memorandum of Understanding with ICANN for collaborative
   development and testing of the mechanisms, methods, and procedures
   necessary to transition management responsibility for specific DNS
   functions to the private sector.
   
   Pursuant to the provisions of the amended Cooperative Agreement, NSI
   developed the Shared Registration System, which allows multiple
   registrars to submit domain name registrations to the registry for the
   .com, .net, and .org domains. On April 21, 1999, ICANN selected five
   Accredited Registrars to participate in Phase I testing of the SRS.
   The test period has been extended several times and has been opened to
   all registrars accredited by ICANN. Currently, there are 76 registrars
   accredited by ICANN. Of these, 29 have obtained the SRS software from
   NSI; 13 have been certified to begin operations; and 11 are actively
   registering domain names.

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