.us Domain Space
by Guest Blogger, 3/12/2002
NOTE: This article was updated on 2/15/02
On June 13, the U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) issued a request for quotes (RFQ) regarding the management and administration of the .us namespace. This is one of the nearly 250 ccTLDs (country code top-level domains), which, since 1994, have been recognized as public resources for the countries to which they are assigned. The domain was overseen by Network Solutions -- a subsidiary of Internet registrar VeriSign and the exclusive operator for the .com, .net, and .org domain name registries until 2007-- under contract with the U.S. Department of Commerce.
Beginning in 1997, the Commerce Department undertook a review of options for improving the operation of the .us domain space. Because it was largely created to give municipal government, schools, and libraries a means to be easily identified online in a less-generic manner than .org or .com domains, it entailed a non-commercial identity. This made it less attractive to the growing number of .com registrars, and therefore less of a priority in the grand scheme of Internet governance. The Commerce Department decided to issue a notice of inquiry (NOI) in August 2000 to gather input on what should be done with the namespace.
The comments period ran less than two months, offering only a short time window for public comments and input, especially from current registrants and public stakeholders, and with limited outreach or education by NTIA as to the impact of the domain transfer. In an October 2, 2000 set of joint comments endorsed by 19 organizations, the Media Access Project and the Benton Foundation proposed principles regarding the management of .us, stating that it should be considered a resource created with public funds, supportive of commercial and non-commercial development of the space, to be used to promote public discourse and democratic principles, with the revenue it derives to be applied toward addressing the digital divide.
As a follow-up to the NOI, an expanded roster of that coalition asked NTIA on February 1, to explore the possibility of .us management by a public interest or nonprofit entity, a proposal rejected by the agency on May 30. The next day, the agency issued a notice of intent, stating that it would propose a request for quotes (RFQ) regarding administration and maintenance of the .us space. The formal RFQ was issued on June 11, quickly raising concerns among a range of public interest advocates.
In addition to not including any language guaranteeing the principles sought by the coalition, the RFQ suggested a bias towards developing the .us as yet another commercial domain opportunity. In addition to notifying bidders that commercial trademark holders have first pick of the best domain names, the RFQ essentially would allow the successful bidder to not only impose fees on existing registrants for what has been a free process, but also requires the bidders to agree to bring .us maintenance into accordance with procedures outlined under the Internet Corporation for Assigned Names and Numbers (ICANN) -- the international body that maintains domain name policies for the Internet. ICANN, for example, requires disputes between name holders to be subject to arbitration. Federal agencies, "may not require any person to consent to arbitration as a condition of entering into a contract or obtaining a benefit," under the Administrative Dispute Resolution Act.
A further legal question arises because in moving managerial authority of .us from state government, agencies, and public interest partnerships -- and placing it into the hands of a private vendor subject to rules of an international nonprofit entity -- the federal government might, in fact, encroach upon state sovereignty, especially since the vendor has no obligation, or incentive, to be accountable to its registrants -- or the public directly.
For its part, the Commerce Department maintained that opening up management of ".us" would allow for expanded use of an underutilized and cumbersome domain name space while ensuring a level of accountability to the American public. This did not quell charges that the government, in effect, was treating Internet domain name space differently from public telecommunications resources, like the wireless spectrum, which are allocated by.an open auction process.
There was some interest in Congress in slowing down, if not halting, the RFQ process during the summer and early fall of 2001. According to a June 19 Bureau of National Affairs article , Reps. Howard Coble (R-NC) and Howard Berman (D-CA), the chair and ranking member of the House Judiciary Committee's Subcommittee on Courts, The Internet, and Intellectual Property, sent a letter on June 14 to Commerce Secretary Donald Evans, asking NTIA to reconsider its RFQ process until concerns around public vulnerability around to cybercrime and fraud, protections for existing copyright and trademark holders, and the impact of revenue from the RFQ on the 2002 fiscal year budget.
The U.S. Commerce Department, despite complaints about the short time frame from public interest groups, the Hill, and potential bidders, concluded the bidding on proposals for managing the ".us" domain on July 27, 2001. That same day, the .us Policy Development CouncilCouncil-a coalition of academic, consumer, corporate, educational, Internet technology, and local government interests-- issued a set of proposals that it encouraged qualified bidders to adopt into their proposals to operate the ".us" registry. One of these items was the funding for the establishment of a nonprofit corporate entity to help the winning bidder set policy for the operation of the site, which three of the bidders included in their proposals.
On October 29, 2001, the Department of Commerce announced its selection of NeuStar, a private firm that also operates the main database of telephone numbers in North America, to manage the ".us" Internet domain. Under the terms of the contract , NeuStar will operate the ".us" domain for four years, with an option to extend maintenance for up to two years. Though the company stated its intentions to expand the range of ".us" domain name offerings to U.S. citizens and businesses, while retaining a significant amount of the ".us" domain space as a free and open resource for entities similar to current registrants (schools, libraries, state and local governments), NeuStar's stated practices towards ".us" to date have draw a number of criticisms:
- NeuStar was not one of the bidders that agreed to incorporate the recommendations of the aforementioned ".us" public interest policy group into its proposal. Upon its selection, the firm announced that it would establish its own policy board, with representation from nonprofit, commercial, and government perspectives, to serve in an advisory- not decision making- capacity.
- NeuStar stated it would offer a thirty-day "sunrise" priority registration period for existing ".us" domain name holders, as well as entities which either currently hold trademarks or have filed U.S. trademark applications, before the opening up domain name registrations. The difficulty here rests with ensuring a sound and fair process, since a good number of trademark applications are rejected-- something that might not be captured if verification is based only on whether an entity has merely filed an application.
- NeuStar stated that when applications for new domain names are accepted by mid-2002, all registrants must be able to demonstrate a nexus with the United States, such that it has substantial presence and significant activity, and the domain name is registered and hosted on a computer which physically sits within the U.S. Critics charge that this amounts to verification based only upon the contact information offered by a domain name holder.
- NeuStar stated that it would establish its own variation of the Uniform Domain-Name Dispute-Resolution Policy (UDRP), used by the Internet Corporation for Assigned Names and Numbers to prevent cybersquatting and domain name speculation. Under the ICANN UDRP, trademark holders must currently demonstrate that domain name registrants both acquired and used a disputed domain name in bad faith. Under NeuStar's modified process, trademark holders would only have to demonstrate either bad faith registration or use. NeuStar would also drop the UDRP's provision for finding of bad faith, based upon a registrant's demonstrated pattern of registering names in order to prevent mark holders from incorporating the mark in a domain name. Critics note that it ignores, or circumvents, a set of agreements reached through difficult compromise through the international body charged with Internet governance.
- The .us Policy Development Council's proposal was introduced late into an already tight bidding timeline, and it lacked clarity around what interests would be represented in a nonprofit policymaking body, much less whether the proposal even fit within the bidding guidelines issued by the Commerce Department.
- The "sunrise" registration policy was mandated for all applicants under the Department of Commerce's RFQ, and a cut-off date has already been effected, past which potential mark holders are not eligible for registering a domain name.
- NeuStar has proposed a nexus dispute policy-- also required by the Commerce Department guidelines-- under which parties could challenge registrations which don't follow stated nexus requirements. Pending an arbitrator's ruling, the domain name would be rendered inactive, such that it or the contact information for the holder could not be transferred to another party. An unsuccessful demonstration of nexus by the registrant would lead to deletion of the domain from the registry, thus making the domain name available to a new registrant.
- NeuStar asserts that its dispute resolution policy would allow mark holders to bring suit against potentially disruptive domain name registrations before, rather than after, their actual use.
