Country Code Top Level Domains - Policies for Delegation of Managers, Management and Operation in Developing Countries  

Introduction

On June 5, 1998 the United States Government ("US Government") released its revised policy on the "Management of Internet Names and Addresses" ("the White Paper"). [1]   In the White Paper, the US Government renewed its call for the privatization of the Internet Domain Name System ("DNS")  "in a manner that allows for the development of robust competition and that facilitates global participation".  It also called on Internet stakeholders to form a private not-for-profit corporation that would assume responsibility for the management and administration of the DNS from the US Government.  The Internet Corporation for Assigned Names and Numbers ("ICANN") was established in November 1998 in response to this call.  ICANN and the US Department of Commerce entered into a Memorandum of Understanding ("MOU"), which provides that over a two-year transition period the US Government will hand over the responsibilities for the Internet to ICANN.  Further, the MOU requires ICANN to develop appropriate relationships with other entities involved in the operations of the Internet in order to enhance its ability to undertake overall responsibility at the end of the two-year period.  To this end, ICANN is currently fostering international discussions and consultations on various aspects of its mandate within the Internet community.   

These discussions aim, inter alia, at developing best practices to govern the relationships amongst the entities operating within the DNS.  In this respect, some attention has focused on the operations of Country Code Top Level Domains ("ccTLDs").  A ccTLD is a distinct two-digit code [2] representing a real geographical area, including independent States and dependent territories, on the Internet.  There are over 200 ccTLDs, each with a manager [3] delegated by the Internet Assigned Numbers Authority ("IANA").  Registrants of domains within ccTLDs account for less than a quarter of the total domain registrant population on the Internet. [4]   Nevertheless, ccTLDs are important because they often serve as the main or sole source of Internet protocol connectivity for users within the nations associated with the ccTLD.  In addition, they are different, and deserve separate consideration from Generic Top Level Domains ("gTLDs") such as the .com, .net and .org domains because of the relationship that may exist between them and the countries associated with them. 

 

IANA does not require ccTLD managers to follow standardized procedures in operating ccTLDs.  Therefore, differences in policy and management exist from one ccTLD to another.  While this divergence among ccTLDs is not necessarily bad, efforts are being made to formulate common policies within the framework of the current discussions so as to ensure that divergent practices do not eventually jeopardize the future stability of the Internet under ICANN's administration. This paper aims to contribute to the discussions on ccTLDs by identifying and discussing some of the issues that ought to be taken into consideration in formulating policies for delegation of managers and management of ccTLDs associated with developing countries.  Part I of the paper will examine IANA/ICANN's current policies on delegation and management as expressed in relevant policy documents and interpreted in recent decisions taken by IANA.  It will also outline the salient features of two of the proposals presented to the ICANN board.

Part II will suggest ways in which the needs of developing countries could be met by the Internet and delegation practice.    It is followed by a brief conclusion.

 

PART I

A.            IANA/ICANN's Current Delegation Polices and Practices [5]

IANA is responsible for the coordination and management of the DNS.  An important part of its functions is to delegate TLDs, portions of the name space within the DNS structure, to managers who perform all the naming functions in the TLDs delegated to them.  Although IANA began creating and delegating ccTLDs to managers in the 1980s, it does not appear that any public records of the factors it considered in making delegations were available until 1994.  In 1994, Dr. Jon Postel, [6] head of IANA, issued a document entitled "Domain Name Structure and Delegation" (Request for Comments ("RFC") 1591). [7] In addition, in May 1999 ICANN and IANA jointly issued a paper entitled "Internet Domain Name System Structure and Delegation" ("ICP-1") [8] which summarizes IANA's practices in administering RFC 1591.  Further, between October 23, 1997 and June 8, 1998, IANA produced five issues of an electronic newsletter entitled "ccTLD News". [9]   Issue No. 1 of the ccTLD News contains information of some relevance to IANA's delegation practices.  Thus some documentation is now publicly available.

 

It is important to note that neither RFC 1591 nor any of the other publicly available documents referred to above were written as standard setting documents against which IANA's delegation decisions could be measured. [10]    Nevertheless, in the absence of clearly defined standards they are important because they detail the ideals which IANA expects managers to meet or aspire toward in carrying out their managerial functions.   In addition, in two recent reports on the .pn (Pitcairn Island) and .ps (Palestine) ccTLDs, IANA has pronounced on some of the principles and ideals espoused in these documents. [11]   Below is a brief summary of the principles one can distil from these documents as they relate to ccTLDs. 

 

Operational and Technical Requirements

IANA's major interest in delegating a ccTLD manager is that the manager can carry out the responsibility of administering the domain in an equitable, just, honest and competent manner.   To this end, IANA expects the manager to meet the following standards:

-           The manager must be equitable to all groups and persons in the ccTLD.  He must process all requests for sub-domains in a non-discriminatory fashion whether they are requests from academics, not-for-profits or commercial users.

-           The manager must have both technical and administrative contacts for the ccTLD.  The administrative contact must reside in the nation associated with the ccTLD.

The manager must supervise the domain's name space.  He must be connected to the Internet, and ensure that there is Internet Protocol connectivity to the name servers and e-mail connectivity to his staff.

The policies and procedures followed by each ccTLD must be available for public inspection. IANA considers that there will be variations in policies and procedures from country to country due to local customs and cultural values.

IANA may revoke a delegation in cases of misconduct by the manager or if there are persistent, recurring problems with the proper operation of the domain.  

 

      Public Service and Trusteeship

Both RFC 1591 and ICP-1 state that the manager of a ccTLD is performing a public service on behalf of the Internet community.  He is also a trustee of the ccTLD for the Internet community and for the nation associated with the ccTLD.  The manager is not to be concerned with rights and ownership of the ccTLD, but with responsibility and service to the community instead.  "ccTLDs are intended to be operated for the benefit of the Internet community in the nation or other territory associated with the two-digit country code." [12]   A factor that influenced IANA's decision to redelegate the management of the .pn domain was that it found that the manager had not done anything to benefit the people of Pitcairn Island. IANA noted that the manager had not introduced reliable Internet connectivity or conferred any other benefit on Pitcairn Island.  In contrast, IANA noted that the proposed new manager's plans included the creation of a website for tourism purposes and implementation of e-mail connectivity to Pitcairn Island.

 

Role of Interested Parties in the Country

When delegating a ccTLD to a manager, IANA is interested in ensuring that the manager is an appropriate person to carry out the DNS functions in the ccTLD.   RFC 1591 does not reveal how IANA would ensure that only appropriate persons are made ccTLD managers.  However, ccTLD News, Issue No. 1 and ICP-1 state that the desires of the government of a country with regard to delegation will be taken very seriously.  Thus there is a presumption in favor of a person or entity proposed by the government of the country associated with the ccTLD.  However, IANA may also carry out its own investigations.  The Palestine Delegation Report, reveals that IANA conducted two investigations to ascertain whether the proposed managers of the .ps ccTLD enjoyed the support of the community. [13]   The investigations revealed that they did and having considered other factors as well, IANA made the delegation to them.

 

4.            Transfers and Disputes over Delegations

IANA's policy is not to get involved in disputes between contending parties in a ccTLD.  Thus, if for example, a government does not believe that the delegated manager is working in the interest of the country associated with the ccTLD, IANA will not ordinarily interfere to take one side or the other.  In the Pitcairn Island case for example, IANA insisted for about a year that the Administration of the Island, which had expressed dissatisfaction with the manager, and the manager should work out their differences themselves.  However, if contending parties are unable to agree IANA does resolve the matter as it eventually had to do in the Pitcairn Island Redelegation.  If it does decide to act, IANA seeks input from persons who may be concerned or affected by the transfer, particularly those within the nation or territory in which the ccTLD has been established to benefit.  In the Pitcairn Island case, IANA considered a petition signed in favor of redelegation by all but two of the adult nationals of the Island. 

 

B.         Current Proposals for ccTLD Management and Manager Delegation

Six recommendations proposing best practices and policies for future delegation and management of ccTLD after ICANN assumes responsibility for the Internet were presented to the ICANN board. [14]   Below, I consider two of them from two interest groups, the Governmental Advisory Committee and an ad-hoc grouping of ccTLD managers.   

 

I.          The Governmental Advisory Committee ("GAC")

ICANN's Bye-Laws authorize its board to establish Advisory Committees, which may submit findings and recommendations to ICANN on issues relating to their spheres of competence. [15]   The Bye-Laws specifically mention the GAC [16] , which is to consider and provide advice on ICANN's activities as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN's policies and various laws, and international agreements.  The GAC, which includes representatives of governments and multinational organizations, submitted a proposal entitled "Principles for the Delegation and Administration of Country Code Top Level Domain" [17] .  The salient features of this proposal are detailed below.   In general, the GAC proposals reserve an important role for the government of the nation associated with the ccTLD.

 

1.            Delegation

The GAC proposes a fundamental change to delegation practices.  The GAC proposes that the government of the nation associated with each ccTLD should be responsible for delegating the manager for the ccTLD who will be recognized by IANA.   Thus, unlike the present situation in which IANA is responsible for delegation, the Government will be responsible. 

 

2.         Public Service

As with RFC 1591 and ICP.1, the GAC states that it is the manager's duty to serve the local Internet community and that the manager is a trustee of the ccTLD for both the local and international Internet communities.  The GAC proposal declares that it is for government of the nation associated with the ccTLD to determine the public interests and policies to be served by the ccTLD.  To the GAC', defining public policies and interests for a ccTLD is no different from any other governmental function because the governments "have responsibility for public policy objectives such as: transparency and non-discriminatory practices; greater choice, lower prices and better services for all categories of users; respect for personal privacy; and consumer protection issues. Considering their responsibility to protect these interests, governments or public authorities maintain ultimate policy authority over their respective ccTLDs and should ensure that they are operated in conformity with domestic public policy objectives, laws and regulations, and international law and applicable international conventions." [18]  

 

3.            Qualifications of Manager

The GAC proposal states that in order to ensure long term stability in the management of the ccTLD, it is preferable that ccTLD management is delegated to an organization or an enterprise rather than to an individual.  Further, the proposals declare that the manager ought to reside in the nation associated with the ccTLD.  However, if the manager and/or his administrative contact are not resident in the nation, they should nevertheless cooperate with the government in a manner consistent with the laws and public policies of the nation.  This is unlike RFC 1591 and ICP-1, which impose a residential requirement only on the administrative contact.

 

4.         Role of IANA/ICANN

The GAC reserves for ICANN/IANA the role of supervising the technical aspects of the manager's duties.  Thus ICANN/IANA will be responsible for overseeing the implementation of technical standards and administering technical management functions.

 

5.            Redelegations

For delegations made in accordance with the GAC proposals, if there is a contravention of the terms of the delegation between the government and the manager and the government informs IANA, the latter must act promptly to redelegate the ccTLD in coordination with government. For delegations made pursuant to current IANA policies under RFC 1591 and ICP-1, if the Government tenders evidence that the manager does not have the support of the local community and the government, or has breached or failed to remedy the material provisions of RFC 1591, IANA will act promptly to redelegate the ccTLD.  This will be a change in practice since the current practice is that IANA does not involve itself in the ccTLD management disputes unless the contending parties are unable to resolve the issue after trying to do so.

 

However, if the complaint about the delegation comes from ICANN/IANA, the government will act to remedy the situation or effect redelegation if ICANN says that ccTLD is being managed in a manner that threatens the stability of internet or in breach of any agreement between ICAAN and the ccTLD manager.  This will be a fundamental change in practice since currently problems with the technical operation of the ccTLD is the only matter over which IANA reserves the right to revoke the delegation.   Whenever, there is a reassignment or redelegation, the GAC proposals state that the registrants in the ccTLD will be afforded name resolution within a particular period or given a reasonable period to transfer to another ccTLD.

 

II.            Alternate ccTLD Best Practices

The Alternate ccTLD Best Practices proposal was produced by an ad-hoc grouping [19] of ccTLD managers.   The group proposes that IANA should abide by the principles underlying RFC 1591.  These principles ought to serve as a foundation for a more complete clarification of IANA's role in supervising and managing ccTLDs.  In reaction to the GAC's proposal, the proposal stresses that managers must be free from arbitrary governmental interference.

 

1.         Status of IANA

The proposal stresses that it is important to keep IANA/ICANN as the supervisor of the manager's activities.

 

2.         Service to the Community

The proposal maintains that the manager duty is one of service to the community.  The manager should foster use of the internet, play a leadership role in promoting Internet awareness and ought to demonstrate over time that he has developed a regular consultative process with various elements of the society who may be affected or profit from the Internet.           

 

3.            Operational Policies

Fair treatment - no preferential treatment for anyone or any entity.

Domain Content - Free flow of ideas and information on the Internet. However, the proposal  acknowledges that some information may be offensive to the public at large or to significant portions of the populace.  Therefore the manager should make attempts to minimize the practices for this set of people.

 

4.            Delegation of New Manager

Procedure

IANA/ICANN should announce that a new manager is going to be selected for the ccTLD.

Qualifications

Financial wherewithal to carry out what is required of the best practices;

Vision, ability and capacity to serve the interests of the community;

Technical capabilities as required by RFC 1591;

Manager must be qualified or better than anyone else to serve the local interests .

Government's Opinion

IANA/ICANN should consider the views of the government associated with the ccTLD.

PART II

I.            Developing Countries and the Internet

By providing unlimited access to information in an atmosphere devoid of the constraints of time and distance, the Internet has had significant effects on every facet of human endeavor, from education and cultural exchange to medicine, governance and commerce to name a few.  Yet, even as it precipitates rapid changes in the developed world, substantial numbers of individuals in developing countries have never heard of the Internet.  Unless measures are taken to provide Internet access to developing country nationals, the pre-IT age gap between the developed and developing worlds will widen as a class of developed "information haves" and developing "information have nots" is created.   All of mankind, not only the nationals of developing countries, will benefit from measures of this sort.  For example, as a medium of social and cultural interaction, the Internet will be richer as the perspectives of nationals of developing countries are brought to bear on it.  For the nationals of developing countries, the Internet can serve a myriad of purposes of which a few are enumerated below.

Education - Many developing countries do not devote significant funding to education and school libraries may be very poorly equipped as a result.  With access to the Internet, students will be able to obtain current educational material, including material for comparative purposes, thereby supplementing what is available locally.  For example, many law students in developing countries will find the web site of Legal Information Institute at Cornell University very useful for their research needs. [20]    Some commentators in Nigeria have tried to draw the attention of the public to the educational values of the Internet. [21]

Health - Like education many developing countries do not devote significant funding to the health sector.  If individuals in developing countries are able to access web sites dealing with health issues, they may be able to help themselves or aid primary healthcare providers in helping them.  Also medical personnel can keep themselves apprised of new developments in medicine all over the world without incurring the prohibitive costs of medical journals and books.

Cultural Exchange and Image building - The Internet can also serve as a medium for nationals of developing countries to present their culture to the world.   In addition, some developing countries have bad public images internationally.  For example, Nigeria because many of its nationals have been involved in fraud scams and Thailand because of its sex industry.  Both private and public initiatives over the Internet can help to remold the international perceptions of individuals from such countries through web sites devoted to image building.

Advertising - Businesses in developing countries can also use the Internet as a medium to expose what they have to offer to an international market.  This will make it easier for consumers all over the world to locate their products and services.  In addition, by so doing the need to attend international trade fairs, which many businesses cannot afford, will be obviated.

E-Commerce - A related issue for businesses is e.commerce, which significantly lowers costs associated with selling products. [22]    The Internet reduces or eliminates the costs of entry to new, global markets, as the huge investment required traditionally is eliminated if a company takes advantage of the relatively lower cost of setting up a web site on the Internet.  However, if businesses in developing countries are very serious about e.commerce, they will need to persuade the banking sectors of the need to develop secure systems for making payments or exchanging money electronically. Presently, not many developing countries have a tradition of credit card usage.

Governance and Other Political Issues - Connecting people in developing countries to the Internet will also enable them to take an active part in issues of relevance internationally.  For example, with the advent of the uni-polar world, Non Governmental Organizations ("NGOs") have come to play very significant roles in several areas of concern to the international community as a whole.  International environmental policy, international criminal law, international human rights and, more recently, world trade are a number of areas in which NGOs are very active in setting the agenda and helping to democratize/popularize decision making processes.  Nationals of developing countries miss out of these kinds of activity, which help to shape the world.  With the Internet, they will also have a voice in matters that concern them.  Particularly, with the globalization of environmental and trade issues which affect many developing countries very acutely, putting the Internet at the disposal of the ordinary individual moves the debate from the confines of the governments of developing countries to involve their subjects.    In regard to good governance, the Internet can also play a key role in helping to shape views in developing countries.  This is more so with developing countries where there are problems with governance.  For example, during the Clinton Impeachment proceedings, developing country nationals who live under dictatorial regimes would have been able to see that democracies do work as the person who is arguably the most powerful man in the world was made to submit to constituted State apparatus.  A similar situation is occurring with the investigations of Helmut Kohl, the former German premier and elder statesman.  Such knowledge can serve to encourage nationals in developing countries as they strive to assert their rights to live under governments that are accountable.

 

It is impossible to generalize about which of the above interests is most important to developing countries because there are differences among all the countries.  In Nigeria, for example, much discussion about the Internet has centered around the beneficial effects e.commerce will have on businesses. [23]   There is no doubt that e.commerce is beneficial but it should not be promoted to the detriment of the other benefits of the Internet as enumerated above.  This is more so because the monetary reward that will come with successful e.commerce is likely to be confined to the elite classes in developing countries unlike the effects of other uses of the Internet which will be more pervasive and long lasting. 

 

Given the above, it is crucial that the delegation and management policies ICANN adopts for ccTLDs should be such that will serve to ensure wide spread Internet access for all nationals in developing countries associated with ccTLDs.  It is also crucial that commercial interests should not be allowed to capture a ccTLD.  IANA agrees with this thinking because as it said in the Pitcairn Island Redelegation case, "ccTLDs are intended to be operated for the benefit of the [whole] Internet community in the nation or other territory associated with the two-digit country code." [24]   It will be unfortunate if the policies now adopted by ICANN negate this ideal rather than try to strengthen the ways of achieving it.

 

II.          What Should IANA Do Now?

1.            Publicizing the Delegation Process in the Nation Associated With the ccTLD

As noted above, IANA currently aims to ensure that the manager is the appropriate person to carry out the DNS function in the ccTLD.  It places great stock on the desires of the relevant Government in this regard.  In my opinion, it is not enough for IANA to rely only on Governments in making this determination.  It is necessary for it to establish a policy by which ordinary persons in the affected nation will know that a delegation is about to take place.  The Alternate Best Practices Proposal agrees that this is appropriate.  In most developing counties it will be futile to do this through announcements on the Internet since very few people have access.  To get to ordinary people, it is preferable to use radio jingles, as well as TV and newspaper advertisements.  This will enable stakeholders in the domain to make comments that will help IANA to come to an informed decision, taking into account all expressed interests including those of the relevant government and commercial interests.

 

Nationality of Manager - The GAC proposes that both the administrative and technical contacts for the manager of a ccTLD should be incorporated in the country associated with the ccTLD.   The current practice under RFC 1591 and ICP-1 does not require any linkage with the country beyond the fact that the administrative contact should be resident there.  In my opinion, what IANA needs to consider is that the person is the appropriate person to be appointed the manager, whether he is a national/incorporated in the country or not.  It is true that there are many peculiarities of developing countries, which a foreigner may not appreciate immediately.  For example, in many African countries like Nigeria and Sierra Leone, electricity and telephone services are highly irregular. Consequently many efforts made by a manager however well intentioned may be frustratingly ineffective.  However, there is no proof that a national will necessarily be able to rise up to the challenge any better than a committed non-national. Another concern about employing nationality as criteria is that a national may be unnecessarily beholden to the government of the country associated with ccTLD.  For reasons that are explored in more detail below, this may not necessarily augur well for the ccTLD.  As such, commitment and clearly defined goals for the ccTLD should trump national preferences.  In addition, I think that the administrative contact residence requirement should be kept.  If the government has any issues to address with the management of the ccTLD, it can press them with an administrative contact that is subject to its jurisdiction.

 

2.         Role of Government of Country Associated With the ccTLD in a Proper Perspective

The GAC proposes that the government of a country associated with the ccTLD should play a pivotal role - delegate the manager and define the interests that will be served by the ccTLD in accordance with its conceptions of public policy.  

 

As a preliminary issue, in discussing how much State control should be permitted in the delegation and management of ccTLDs, one should keep in mind that cyber space and real space are different.  Traditionally, a State may have undisputed rights to regulate any activity it chooses within the real space encompassed by its borders.  In cyber space it is unclear if borders exist at all and so it is difficult for a State to argue that it has an intrinsic right appurtenant to its statehood to regulate the activities in a clearly defined part of the whole space.  In these times when human rights and environmental concerns have conspired to erode the authority of the State even in real space, it will be unfortunate to have an ICANN bound to rubber stamping every will of the State on account of outmoded conceptions of sovereignty. [25]

 

Another problem with governments playing a pivotal role is that in many developing countries or territories, ICANN may have to enter into the uncomfortable discussion of who or what is the legitimate government.  Currently, many of the wars of secession and agitations for autonomy are taking place in the developing world (Sudan, Sierra Leone, Somalia, Kosovo, and East Timor).  To expect ICANN, a private not-for-profit corporation, to involve itself in the delicate issue of recognizing a manager chosen by one warring faction or the other is unreasonable. IANA's current practice of relying on the ISO-1366-1 List rather than on its own judgment of what is a State should extend to this related issue of governments.  One may be forgiven for thinking that people in these trouble spots are too busy trying to survive to have time for the intrigues of cyber space.   However, for some a ccTLD in cyber space is just what they need to push their agenda forward.  ICANN should neither encourage nor discourage such actions so long as we subscribe to the view that cyber space is free space. [26]

 

The other issue raised by the GAC proposal is the government's role as the definer of public policy and public interests.  As noted above cyber space is different from real space and so there is no reason to grant governments controlling powers over ccTLDs without question.  Clearly there are some interests that a government may legitimately want to protect through the ccTLD.  If the ccTLD is the only (or only affordable) means of accessing the Internet in the country, the government may want to protect certain interests by restricting or strictly monitoring access to the Internet.  It is not unreasonable for the government of a developing country to be concerned about cyber terrorism, espionage, pedophilia, and other illegal conduct since it is unlikely to be able to afford fighting these evils effectively. [27]   In addition, many developing countries have illiberal governments, which may be concerned to protect their citizens from the "ills" of pornography, mass consumerism, Americanization and unbridled expression.  Further, if a government wishes to have a ccTLD that is based on political geography like the US or Canada only for users within the country, then it understandable that it insists on controlling the ccTLD. 

 

However, the world is now uni-polar and internationally, liberal values such free speech, free exchange of knowledge and free trade, are fast becoming accepted by individuals across national boundaries.  Also in some developing countries the government does not represent the interests of the people, but its own interest in self-succession and repression. In these circumstances, governments should not be handed the opportunity to place restrictions on their citizens if other options are possible.  As noted above, one function the Internet can serve in developing countries is to give the nationals a voice in issues of international concern, expose them to various forms of governance and involve them in international cultural exchanges.   It would be unfortunate for ICANN to adopt a policy that will result in significant populations being consigned to a national existence in an increasingly globalized world. 

 

Clearly, the government of a developing country is not irrelevant.  It is important that IANA keeps according it a significant role in the process of choosing the manager.  This is more so because given the lack of infrastructure, a manager of the ccTLD may have to work very closely with the government to ensure that the nationals have access to the Internet.   In Nigeria to get a telephone installed in Lagos a subscriber has to pay approximately US$ 150.00 while the minimum wage has only recently been raised to approximately $5.50. [28] Further, in Morocco the cost of a local call is even higher than international ones so that free local calls while connected to the Internet are prohibitively expensive. [29]    Also irregular electricity supply is another problem.  As such, while one may be concerned about giving the government free rein over the choice of a manager, ICANN cannot afford to choose a manager that is totally unacceptable to government if the needs of the individuals are to be met.

 

It is important to note that even if States do not have a direct role in the manager delegation process, they are not entirely without a voice in ICANN.  A State that is concerned that the ccTLD associated with it may not be delegated to the manager of its choice can canvass support for its views in the GAC which may, if its members are agreed, issue an advisory opinion on the matter to ICANN. What is important, is that the State is advising ICANN, rather than dictating to ICANN what it should do.  Also, the GAC may serve as a sifting arena for any improper motives that may influence a State's insistence on a particular manager.  This is because the State will have to convince other States in the GAC to issue an advisory opinion supporting its position to ICANN.  If the views within the GAC remain in line with its proposals, it is unlikely that it will issue any advisory opinions that do not accord with a State's choice.  However, this result may not necessarily ensue because the GAC's proposal is general, but if States are considering  issuing an advisory opinion they will have to make good faith assessments of particular facts presented to them.  In addition, an affected State could also lobby the Administrative Committee, especially the member from its region, of the ccTLD Constituency and the Names Council of the DNSO.  Again, the important thing is ventilation of its views in the different non-binding arenas and contexts available within ICANN, rather than an imposition of its views on ICANN.

 

3.         The Role of the Community

The Alternate Best Practices proposal states that the manager must demonstrate over time that it has established a consultative process with various elements of society who may be affected or profit from the Internet.  This is a proposal that will be very useful for developing countries and it is one that ICANN should build into the requirements for the manager.  Under current practice the ccTLD is viewed as beneficially owned by the Internet community both locally and globally.  Therefore, it is important that stakeholders have a say in the policies that guide its operations.  It is easy for the manager to slip into monopolistic practices since the position is not for a specific term and the stability of the Internet operations demands that changes should not be made lightly.  As such, having a group of stakeholders involved is important.

 

ICANN's delegation and management policy can help to create an attractive and inclusive Internet community in developing countries by imposing a democratic requirement on the management of ccTLDs.  This can be done by requiring managers to develop the policies for ccTLD operations in conjunction with the local community.  The initial policy on the basis of which delegation is made may be developed solely by the manager, but as a condition of delegation, ICANN may specify a time period within which the manager must form a local policy making body for the ccTLD.  This approach has already been adopted by the ccTLD management in Pakistan (Pakistan Network Information Center (PKNIC)). [30]   In order to "eliminate monopoly, bureaucratic or inefficient, or dominance positions in domain registration management" PKNIC created a Policy Committee, open to all Pakistani nationals, which will responsible for deciding any changes to its policies.   Currently, there are about 329 members on the committee, many of whom are Pakistani students and IT specialists, who can bring their own experiences to bear on the ccTLD as well as increase the general Internet awareness in the communities in which they live. 

 

An additional factor to bear in mind on involving the public is that a requirement to seek input from the community on what interests should be served will not really have a significant effect on society if, as in many developing countries, the community is not sufficiently familiar with IT to understand the uses to which the Internet and other IT related technology may be put.  For example, a manager of a ccTLD in a developing country can satisfy his burden of ascertaining interests by hosting fora at which stakeholders can brain storm and draw up plans of action.  However, such fora will often comprise of self serving elites who are in the know about the Internet because their exposure to the West, while large proportions of the general populace wallow in ignorance about the new technologies.  In addition, those who are already involved in the Internet in these countries, for example ISPs, have something to gain in maintaining the mystic surrounding the Internet since the less the general public understands about it, the greater the possibility that they can keep the prices high.  To avoid this situation, what the manager should be involved in doing is mass Internet awareness programs - no amount of "democratizing" via public fora and debate will help to get the message about the Internet to the average person awareness campaigns are carried out.  If people are generally computer illiterate, it makes no sense to suddenly expect them to make meaningful contributions to debates about the uses to which the Internet may be put in their communities. 

 

Thus, ICANN may impose mass Internet awareness obligations on managers.  Managers should be required to present plans of how they hope to engage sponsors such as the Ford and MacArthur Foundations, the British Council, Alliance Française, Goethe Institute and USAID, all which have shown an interest in development projects in developing countries, in promoting the Internet.  There is no doubt that these are onerous obligations, but one must bear in mind is that the management of a ccTLD associated with a developing country is truly a public service.  Managers of ccTLDs should not be individuals or entities that are just in it for business. ICANN needs to factor commitment into its choice of managers where developing countries are concerned. [31]

 

4.         Other Matters for ICANN to Consider

Competition

To increase the possibilities that nationals of developing countries would truly benefit from the Internet, ICANN may wish to create post delegation competition among ccTLD managers as has been done with the gTLDs.  So one country can have several managers (.ng1, .ng2 etc for Nigeria).  This will increase competition amongst the managers as they vie to make their branches of the ccTLD attractive.  However, a side effect is that it might also lead to a lack of accountability in domain maintenance as managers can push responsibility back and forth between themselves.

Standard Contracts

ICANN can require each ccTLD to have standard contracts for its customers.  This will ensure that commercial interests are not treated any better than other equally important interests.  This is particularly important in developing countries where e.commerce seems to be the new found business trend.

Governing Law

ccTLD managers should not necessarily be required to have the law governing their contracts with their registrants be the law of the country associated with the ccTLD.  Unlike English or New York law, the laws of many developing countries are not generally considered attractive in international business.  As such, if the ccTLD wishes to attract international custom, it may difficult to do so if the governing law is the local law.  Where, as in the Rwandan and Democratic Republic of Congo ccTLDs the foreign custom subsidizes local nationals, it is essential to keep an international approach to governing law.  However, it is preferable to have one law for example, English law, govern all contracts than to leave the manager free to chose as he wishes.   To safeguard intellectual property rights in particular, it is essential to have certainty of the law governing the domain.

Technical Supervision

Developing countries will benefit from continued technical supervision from IANA.  This will enhance uniformity and stability of the Internet and it will also ensure that the technical standards in developing countries do not fall below that of the developed world.  Developing countries such as Nigeria only have 9.6 Kilobit per second Internet connectivity, one of the slowest in the world. [32]   It would be unfortunate if other technical parameters are also permitted to fall below world standard.

 

Conclusion

Given the benefits to be gained by access to the Internet in developing countries, the general non-portability of domains between ccTLDs, the necessity of ensuring stability in the operations of the Internet and the tensions that attend redelegations, it is essential that the management of ccTLDs associated with developing countries be entrusted to individuals or entities committed to public service.  The management of a ccTLD associated with a developing country ought not to be viewed as a money making venture, but as an important service that can make a difference in whether the country and its nationals can become relevant globally.

 

ICANN is a private body and it is yet to have truly international representation.  Nevertheless, the functions soon to be entrusted to it by the most powerful State in our uni-polar world are public functions.  It cannot afford to shy away from hard issues such as concerns about sovereignty because such issues will always dog its work.  Of the two proposals outlined in Part I above, the proposal on "Alternate Best Practices" is preferable for meeting the needs of developing countries. While maintaining the pragmatic spirit of RFC 1591, it imposes some concrete obligations on ccTLD managers.  Together with some of the issues raised in Part II, it can form the framework through which a committed individual or entity can bring nationals of some developing countries onto the information super highway.

 

 

 

This paper was written in 2000 by Tinuade Awe in part fulfillment of the requirements of a seminar in intellectual property law at Harvard Law School.  There have been several developments in the ICAAN process since the date of this paper.  However, many of the issues raised are especially germane as the debates over the .ng ccTLD are ongoing at the present time.  Ms. Awe is presently associated with the law firm of Simpson Thacher & Bartlett LLP in New York city.  The views expressed are  personal and do not represent the views or opinions of Simpson Thacher & Bartlett LLP. 

Ms. Awe may be reached at tawe@jidaw.com