| † | Professor, University of Miami School of Law. E-mail: froomkin@law.tm.
Research and writing of this Article was supported by a Summer Grant from
the University of Miami School of Law. Thank you to Karl Auerbach and Richard
Sexton for technical information, to Tony Rutkowski for help with DNS history,
to Jonathan Weinberg for a number of very helpful conversations, to all
the members of the BWG+ mailing list for an education, to James Boyle for
including me in this symposium, to Julie Dixson for research assistance,
and especially to Caroline Bradley. Kind readers who helped me correct
and improve drafts included Alan Davidson, John Hart Ely, Bret A. Fausett,
Patrick Gudridge, David Johnson, David Post, Ellen Rony, Tony Rutkowski,
Joe Sims, and Jonathan Weinberg. Remaining errors are my own unintentional
contribution to further obfuscating ICANN's history.
Readers have a right to know that I participate in activities that touch on the subject of this Article. I served as a member of the so-called Panel of Experts that advised the World Intellectual Property Organization on its Domain Name Process. See infra note 13. Currently, I am a director of disputes.org, which, in partnership with eResolution.ca, is one of the dispute resolution providers accredited by ICANN. See Approved Providers for Uniform Domain Name Dispute Resolution Policy, at http://www.icann.org/udrp/approved-providers.htm (last visited Sept. 21, 2000) (providing a link to the eResolution website) (on file with the Duke Law Journal). I am also a co-founder of ICANNWatch.org, a group founded to increase awareness of ICANN's activities. The views expressed in this article are my own and should not be attributed to either disputes.org or ICANNWatch.org. An earlier version of this paper was delivered in Durham, N.C., on March 3, 2000. Unless otherwise noted, this Article aims to reflect technical and legal developments as of October 1, 2000. |
| 1. | JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 320 (1965). |
| 2. | See infra Part II.B. DoC recently extended these contracts. See infra note 47. |
| 3. | See generally A. Michael Froomkin, The Internet as a Source of Regulatory Arbitrage, in BORDERS IN CYBERSPACE: INFORMATION POLICY AND THE GLOBAL INFORMATION INFRASTRUCTURE 129 (Brian Kahin & Charles Nesson eds., 1997) (explaining "the Internet's resistance to centralized control"), available at http://www.law.miami.edu/~froomkin/articles/arbitr.htm. But see infra note 709 and accompanying text (discussing centralizing tendencies). |
| 4. | See infra Part I.A for a fuller explanation of the functioning of the DNS. |
| 5. | See ICANN Fact Sheet, at http://www.icann.org/general/fact-sheet.htm (last modified Mar. 25, 2000) (on file with the Duke Law Journal). In addition to giving ICANN effective control over the DNS, DoC gave ICANN the authority to make critical decisions relating to Internet Protocol (IP) numbers. See id. In the long run, control over IP numbers is likely to be more important than control over the DNS. The Internet as we know it could function without domain names. It could function, albeit differently, with radically different systems for allocating domain names. It cannot function without a system for the unique allocation of IP numbers. Furthermore, the demand for IP numbers is likely to increase exponentially as designers begin to put IP numbers on everything found in the office or home-even the foods found in a "smart fridge." See A. Michael Froomkin, The Death of Privacy, 52 STAN. L. REV. 1461, 1493-94 (2000). This Article nevertheless concentrates on the short-term DNS issues, because they are much clearer. ICANN has yet to take any substantial decisions relating to the allocation of IP numbers. |
| 6. | See Jonathan Zittrain, ICANN: Between the Public and the Private: Comments Before Congress, 14 BERKELEY TECH. L.J. 1071, 1073 (1999) (noting that control of .com could facilitate the control of content). |
| 7. | Reviewing the "research done and steps taken" to avoid Y2K disruptions
of the Internet, one report noted:
Due to its fundamental design assumption of a singly rooted hierarchical namespace, the domain name system (DNS) comprises one of the few (logical) single points of failure within the Internet. More specifically, the root of the Internet namespace is held in 13 geographically distributed root name servers operated by nine independent organizations. In a worst case scenario, loss of all 13 of the root name servers would result in significant disruption to Internet operation as name to address translation (and vice versa) would no longer function.David Conrad et al., Root Nameserver Year 2000 Status, at http://www.icann.org/committees/dns-root/y2k-statement.htm (last modified July 15, 1999) (on file with the Duke Law Journal). |
| 8. | See generally Vint Cerf, A Brief History of the Internet and Related Networks, Internet Society, at http://www.isoc.org/internet-history/cerf.html (July 1995) (documenting the creation and growth of the Internet) (on file with the Duke Law Journal); Barry M. Leiner et al., A Brief History of the Internet, Internet Society, at http://www.isoc.org/internet-history/brief.html (last visited Aug. 17, 2000) (reviewing the origin and fundamental ideas behind the Internet) (on file with the Duke Law Journal). |
| 9. | See infra Parts II.A.3-5. Even if the individuals responsible for managing the government's support of the networks that would grow into the Internet may have understood the implications of their work, there is no sign that this understanding extended to higher-level officials. |
| 10. | In 1998, NSI registered almost two million new names. See Michele Masterson, NSI Registers Almost 2 Million Web Addresses in 1999, INTERNET NEWS.COM, ¶ 1 (Jan. 12, 1999), at http://www.internetnews.com/bus-news/article/0,2171,3_24221,00.html (on file with the Duke Law Journal). The growing importance of domain names led to speculative registration and hoarding. By April 1999, Wired News found that fewer than 2,000 of the 25,000 most common English words remained to be registered. See Declan McCullagh, Domain Name List is Dwindling, WIRED NEWS, ¶ 3 (Apr. 14, 1999), at http://www.wired.com/news/technology/0,1282,19117,00.html (on file with the Duke Law Journal). Many of the most attractive names had been taken years earlier. See ELLEN RONY & PETER RONY, THE DOMAIN NAME HANDBOOK 26, 31-32 (1998) (noting that many popular domain names are no longer available). |
| 11. | The first high-profile disputes were in 1994, over kaplan.com and mtv.com. See generally RONY & RONY, supra note 10 (tracing the history of these disputes). |
| 12. | Karl Auerbach has suggested that the smallest technically-mandated
upper level for the number of gTLDs might be as high as a million. See
Posting of Karl Auerbach, karl@CaveBear.com, to wg-c@dnso.org (Dec.
15, 1999), Domain Name Supporting Organization, http://www.dnso.org/wgroups/wg-c/Arc01/msg00195.html
(on file with the Duke Law Journal). On October 10, 2000, Mr. Auerbach
was elected as the North American representative to the ICANN board. See
Vote for Region 5 Director-North America, at http://www.election.com/us/icann/region5.html
(last visited Oct. 12, 2000) (announcing Auerbach's election) (on file
with the Duke Law Journal). Others with long experience in DNS matters
apparently agree. See E-mail from Paul Vixie, BIND 8 Primary Author,
to Eric Brunner (Dec. 15, 1999) ("A million names under '.' isn't fundamentally
harder to write code or operate computers for than are a million names
under 'COM.'"), Domain Name Server Organization, http://www.dnso.org/wgroups/wg-c/Arc01/msg00203.html
(on file with the Duke Law Journal). Peter Deutsch has performed
tests using the .com file as a Top-Level Domain (TLD) and found that it
works. Indeed, he argues that this is not surprising, as there is no technical
difference between the TLD file and a second-level domain file. See
E-mail from Peter Deutsch, Engineering Manager, Cisco Systems, to Professor
A. Michael Froomkin, University of Miami School of Law (Sept. 26, 2000)
(on file with the Duke Law Journal). There are currently about sixteen
million registrations in .com, suggesting that the maximum number of TLDs
may be very high. See Quickstats, at http://www.dotcom.com/facts/quickstats.html
(last visited Sept. 29, 2000) (reporting twenty million registrations,
of which 80% are in .com) (on file with the Duke Law Journal).
Some experts worry, however, that a very large number of new TLDs might affect DNS response time. See, e.g., E-mail from Paul V. Mockapetris, BIND Author, to Paul Vixie, BIND 8 Primary Author, & Eric Brunner (Dec. 15, 1999) (querying whether one million new TLDs would impose performance costs on DNS), Domain Name Server Organization, http://www.dnso.org/wgroups/wg-c/Arc01/msg00202.html (on file with the Duke Law Journal). |
| 13. | See, e.g., The Management of Internet Names and Addresses: Intellectual Property Issues-Final Report of the WIPO Internet Domain Name Process, ¶ 23, World Intellectual Property Organization, at http://wipo2.int/process1/report/finalreport.html (last visited Aug. 17, 2000) (noting the existence of "a number of predatory and parasitical practices that have been adopted by some . . . includ[ing] the deliberate, bad faith registration as domain names of well-known and other trademarks in the hope of being able to sell the domain names to the owners of those marks") (on file with the Duke Law Journal) [hereinafter Domain Name Process]. WIPO's Final Report set out many of the ideas later incorporated into ICANN's Uniform Dispute Resolution Policy (UDRP). I disagreed with substantial portions of that final report and said so in A. Michael Froomkin, A Commentary on WIPO's The Management of Internet Names and Addresses: Intellectual Property Issues, at http://www.law.miami.edu/~amf/commentary.pdf (last visited Sept. 21, 2000) (listing the author's critiques of the report) (on file with the Duke Law Journal) [hereinafter Froomkin, A Commentary on WIPO's Management]. I was also a member of the so-called "small drafting committee" that advised ICANN on the UDRP, see Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy, § 2.4, at http://www.icann.org/udrp/udrp-second-staff-report-24oct99.htm (Oct. 24, 1999) (on file with the Duke Law Journal) [hereinafter Second Staff Report], although I have my differences with it as well. See A. Michael Froomkin, Comments on ICANN Uniform Dispute Policy: A Catalog of Critical Process Failures; Progress on Substance; More Work Needed, at http://www.law.miami.edu/~amf/icann-udp.htm (Oct. 13, 1999) (noting that while this draft is "unquestionably an improvement . . . . this may say as much about the sad state of the predecessor draft as about the virtues of the current document") (on file with the Duke Law Journal) [hereinafter Froomkin, A Catalog of Process Failures]. |
| 14. | See Angela Proffitt, Drop the Government, Keep the Law: New International Body for Domain Name Assignment Can Learn from United States Trademark Experience, 19 LOY. L.A. ENT. L.J. 601, 608 (1999) (noting the concerns of the European Union, the Australian government, and others that the United States had "too much control over the DNS"). |
| 15. | Management of Internet Names and Addresses, 63 Fed. Reg. 31,741 (1998), http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm (on file with the Duke Law Journal) [hereinafter White Paper]. |
| 16. | See id. at 31,744. |
| 17. | For a simplified view of the mind-boggling complexity of ICANN's internal structures, circa September 1999, see fig. 1, supra pp. 185-86. |
| 18. | See infra Part II.B.2 (describing ICANN's move to limit the legal import and effect of elections for at-large board seats). |
| 19. | A "registrar" is a firm that contracts with clients ("registrants") to collect their information and payment in order to make a definitive and unique entry into a database containing all domain names registered in a top-level domain (TLD). This database is maintained by a "registry." Top-level domains are sometimes grouped into "generic TLDs" (gTLDs), most of which are currently three- or four-letter transnational domains, and "country code TLDs" (ccTLDs) which are currently two-letter TLDs, most of which exist to serve a national population. See infra Part I.A.1. |
| 20. | See Uniform Domain-Name Dispute Resolution Policy, at http://www.icann.org/udrp/udrp-policy-24oct99.htm (Oct. 24, 1999) (defining, for example, the scope of applicable disputes, as well as evidentiary and response requirements) (on file with the Duke Law Journal) [hereinafter UDRP]. |
| 21. | See infra notes 342-68 and accompanying text; see also Christopher R. Perry, Note, Trademarks As Commodities: The Famous Roadblock To Applying Trademark Dilution Law In Cyberspace, 32 CONN. L. REV. 1127, 1155-57 (2000) (noting the numerous criticisms of UDRP). |
| 22. | See infra note 98. |
| 23. | See infra Part II.B.1. |
| 24. | See generally AL GORE, CREATING A GOVERNMENT THAT WORKS BETTER & COSTS LESS (1993) (arguing that agencies should adopt strategies that make private businesses competitive). But see generally A. Michael Froomkin, Reinventing the Government Corporation, 1995 U. ILL. L. REV. 543 (1995) (suggesting that reforms to increase accountability should be a prerequisite to the proliferation of federal government corporations), available at http://www.law.miami.edu/~froomkin/articles/reinvent.htm (on file with the Duke Law Journal). |
| 25. | See infra note 82. |
| 26. | See infra Part III.B (discussing the ICANN-DoC relationship). |
| 27. | On the DNS wars, see Craig Simon, Overview of the DNS Controversy, at http://www.flywheel.com/ircw/overview.html (last modified Sept. 14, 2000) (providing historical background and the author's analytical approach to the DNS controversy) (on file with the Duke Law Journal). |
| 28. | The GAO's recent report, see Letter from Robert P. Murphy, General Counsel, General Accounting Office, to Sen. Judd Gregg, Chairman, United States Senate Subcommittee on Commerce, Justice, State, and the Judiciary 25 (July 7, 2000), http://www.gao.gov/new.items/og00033.pdf (on file with the Duke Law Journal) [hereinafter GAO Report], deals only with the issues surrounding the establishment of ICANN, and DoC's authority to enter into contracts with it. The GAO's conclusions in this report that no laws were violated when ICANN was established, see id. at 12, are most likely correct. The GAO's conclusion that DoC had the authority to contract with ICANN may also be technically correct, although to reach that conclusion the GAO had to rely on the text of the agreements and largely ignored their substance and implications. See id. What matters most, legally, is DoC's (not ICANN's) performance during the life of those agreements, as that is where the legal violation lies. |
| 29. | See generally Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543 (2000) (reconceptualizing administrative decisionmaking as a series of negotiations between public and private actors); Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667 (1975) (examining the problem of agency discretion). |
| 30. | See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936) (condemning delegation to a private group as the worst type of legislative delegation); cf. Texas Boll Weevil Eradication Found. v. Lewellen, 952 S.W.2d 454, 465 (Tex. 1997) (applying a balancing test to determine the invalidity, under the Texas Constitution, of a legislative delegation to a private entity). |
| 31. | 298 U.S. 238 (1936). |
| 32. | 295 U.S. 495 (1935). |
| 33. | See Carter Coal, 298 U.S. at 311; Schechter Poultry, 295 U.S. at 537. The private nondelegation doctrine should not be confused with its more famous constitutional cousin, the public nondelegation doctrine. Long thought to have been in desuetude, but now revived, the public nondelegation doctrine imposes a particularity requirement on delegations of congressional authority to federal agencies. See infra notes 564-69 and accompanying text. |
| 34. | See infra notes 569-71 and accompanying text. |
| 35. | See, e.g., Carter Coal, 298 U.S. at 239, 295 (holding that the empowerment of a national commission through the Bituminous Coal Conservation Act of 1935 is beyond the powers of Congress). |
| 36. | See Brian Krebs, Regulators Would Do Well to Mimic ICANN-White House, at http://www.newsbytes.com/pubNews/00/148011.html (Apr. 25, 2000) (summarizing a speech by DoC General Counsel Andrew Pincus arguing that "[t]he federal government could put an end to its numerous Internet regulatory headaches if it approached industry with the same type of cooperation shown . . . under the aegis of ICANN") (on file with the Duke Law Journal). Cf. Masanobu Katoh, ICANN-A Model for International Organizations in the 21st Century, at http://www.mkatoh.net/speech/icann_katoh072000-e.ppt (July 2000) (archiving PowerPoint slides from a speech made by ICANN board member-elect arguing that ICANN could be a model for global rulemaking in the twenty-first century) (on file with the Duke Law Journal). |
| 37. | See infra Part III.C-E;
see also Kenneth M. Casebeer, The Empty State and Nobody's Market:
The Political Economy of Non-Responsibility and the Judicial Disappearing
of the Civil Rights Movement, 54 U. MIAMI L. REV. 247, 255 (2000):
More and more governance is carried out by delegation to private institutions, by subsidy, by tax incentive or disincentive, by private enforcement, by the nod and the wink, or by intentional inaction. All such law is not State or government action subject to the responsibilities of Constitutional rights or enforceable limits. |
| 38. | See, e.g., Rebecca L. Brown, Accountability, Liberty, and the Constitution, 98 COLUM. L. REV. 531, 533, 565 (1998) (discussing the role of accountability in the design of U.S. political institutions). |
| 39. | More than 158,000 Internet users "joined" ICANN as "members," and an
unknown number of others were unable to join, as ICANN's computers-programmed
to handle only 10,000 applications-were overwhelmed. See ICANN
At-Large Membership Registration Exceeds 158,000 Internet Users Worldwide,
at http://www.icann.org/announcements/icann-pr31jul00.htm
(July 31, 2000) (on file with the Duke Law Journal) [hereinafter
ICANN Membership Registration]. ICANN first sought to perpetuate
its insulation from legal challenge by its membership by eliminating direct
election of directors, and only reinstated direct election under pressure.
See Jonathan
Weinberg, ICANN and the Problem of Legitimacy, 50 DUKE L.J. 187,
246 (2000); Comments of Common Cause and the Center for Democracy
and Technology on Proposed Revisions to ICANN Bylaws on At-large Membership,
Center For Democracy and Technology, at http://www.cdt.org/dns/icann/000709comments.shtml
(July 9, 2000) (on file with the Duke Law Journal) [hereinafter
Comments of Common Cause]. ICANN then revised its bylaws to state
that the people filling out a "membership" form on the ICANN website in
order to vote for five (down from nine) at-large ICANN directors are not
in fact "members" under California law. See ICANN Bylaws,
art. II, § 1, at http://www.icann.org/general/archive-bylaws/bylaws-16jul00.htm
(July 16, 2000) (on file with the Duke Law Journal):
The Corporation shall not have members as defined in the California Nonprofit Public Benefit Corporation Law (CNPBCL), notwithstanding the use of the term "Member" in these bylaws, in a selection plan adopted by board resolution, or in any other action of the board. Instead, the Corporation shall allow individuals (described in these bylaws as "Members") to participate in the activities of the Corporation as described in this Article II and in a selection plan adopted by board resolution, and only to the extent set forth in this Article II and in a selection plan adopted by board resolution. |
| 40. | See infra notes 315-25 and accompanying text. |
| 41. | See infra note 320 and accompanying text; see also March 2000 ICANN Meeting in Cairo: ICANN Budget for 2000-2001 Fiscal Year, § II, at http://www.icann.org/financials/cairo-fy00-01-budget-issue.htm (Mar. 6, 2000) (reporting an estimate of NSI's payments) (on file with the Duke Law Journal) [hereinafter 2000-01 Budget]. |
| 42. | In the Registry Agreement, approved November 4, 1999, NSI reserved the right to challenge new ICANN policies as not being based on a consensus. See ICANN-NSI Registry Agreement, § 1, at http://www.icann.org/nsi/nsi-registry-agreement-04nov99.htm (Nov. 4, 1999) (on file with the Duke Law Journal). In its agreement with registrars, approved November 4, 1999, ICANN also promised registrars that they would have 15 days to challenge major decisions by lodging a challenge with an independent review panel. See Registrar Accreditation Agreement, § I.B, at http://www.icann.org/nsi/icann-raa-04nov99.htm (Nov. 4, 1999) (on file with the Duke Law Journal). On March 10, 2000, ICANN adopted its Independent Review Policy. See Independent Review Policy, § 1, at http://www.icann.org/indreview/policy.htm (Mar. 10, 2000) (on file with the Duke Law Journal). However, as of this writing, ICANN has yet to appoint any Panel members. |
| 43. | Whether and under what circumstances DoC would turn over the root to
ICANN has been the subject of somewhat contradictory pronouncements. In
the White Paper, DoC stated, "The U.S. Government would prefer that this
transition be complete before the year 2000. To the extent that the new
corporation is established and operationally stable, September 30, 2000
is intended to be, and remains, an 'outside' date." White Paper, supra
note 15, at 31,744. More recently, DoC assured Congress
that it intends to retain its rights over the DNS:
The Department of Commerce has no intention of transferring control over the root system to ICANN at this time [July 8, 1999]. . . . If and when the Department of Commerce transfers operational responsibility for the authoritative root server for the root server system to ICANN, an [sic] separate contract would be required to obligate ICANN to operate the authoritative root under the direction of the United States government.Letter from Andrew J. Pincus, DoC General Counsel, to Rep. Tom Bliley, Chairman, United States House Committee on Commerce (July 8, 1999), National Telecommunications and Information Administration, http://www.ntia.doc.gov/ntiahome/domainname/blileyrsp.htm (on file with the Duke Law Journal). Meanwhile, or at best slightly later, DoC apparently assured the European Union that it intends to give ICANN full control over the DNS by October 2000: [T]he U.S. Department of Commerce has repeatedly reassured the Commission that it is still their intention to withdraw from the control of these Internet infrastructure functions and complete the transfer to ICANN by October 2000. . . . The Commission has confirmed to the US authorities that these remaining powers retained by the United States DoC regarding ICANN should be effectively divested, as foreseen in the US White Paper.Commission of the European Communities, Communication from the Commission to the Council and the European Parliament: The Organization and Management of the Internet International and European Policy Issues 1998-2000, at 14 (Apr. 7, 2000) (emphasis added), Information Society Promotion Office, http://www.ispo.cec.be/eif/InternetPoliciesSite/Organisation/com(2000)202EN.pdf (on file with the Duke Law Journal). Recently, DoC assured the GAO that "it has no current plans to transfer policy authority for the authoritative root server to ICANN, nor has it developed a scenario or set of circumstances under which such control would be transferred." GAO Report, supra note 28, at 30. ICANN meanwhile stated on June 30, 2000, that "[s]ince it appears that all of the continuing tasks under the joint project may not be completed by the current termination date of the MOU, the MOU should be extended until all the conditions required to complete full transition to ICANN are accomplished." Second Status Report Under ICANN/US Government Memorandum of Understanding (30 June 2000), § D.4, at http://www.icann.org/general/statusreport-30jun00.htm (June 30, 2000) (on file with the Duke Law Journal) [hereinafter Second Status Report]; see also infra note 89 and accompanying text (describing the ICANN board resolution seeking to take direct control of the root and to sign contracts with other root server operators). |
| 44. | The GAO recently described DoC's authority to effect a hypothetical transfer as "unclear." See GAO Report, supra note 28, at 25. If the U.S. government's interest is a property right, or an intellectual property right, then DoC would need statutory authority to give it away under the Property Clause of the Constitution. See U.S. CONST. art. IV, § 3, cl. 2 ("The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . ."); GAO Report, supra note 28, at 26 n.43; cf. supra note 43 (listing DoC's varying accounts regarding whether it intended to give up control of the root). |
| 45. | This would require some kind of notice to affected parties, and in many cases, might also require a written decision of some sort. See 5 U.S.C. § 555(e) (1994) (requiring an agency to issue a written decision if an interested person has filed a written application, petition, or other request in connection with an agency proceeding). |
| 46. | One important exception is when they are state actors. See infra Part III.B.3. Another exception is when they serve as advisory committees under the Federal Advisory Committee Act, which is codified within the APA. See infra Part III.C.3. |
| 47. | ICANN's hold on the DNS was due to expire on September 30, 2000. See
Memorandum of Understanding, Dept. of Commerce and ICANN, at
http://www.icann.org/general/icann-mou-25nov98.htm
(Nov. 25, 1998) (on file with the Duke Law Journal) [hereinafter
Memorandum of Understanding]. On September 4, 2000, ICANN announced
that following ICANN's submission on June 30, 2000, of a second status
report under the memorandum, see Second Status Report, supra
note 43, the U.S. government agreed to extend ICANN's
hold on the DNS for one year, or less "if ICANN and the U.S. government
agree that the work under the MOU has been completed." Announcement:
ICANN and U.S. Government Agree to Extend Agreements, at http://www.icann.org/announcements/icann-pr04sep00.htm
(Sept. 4, 2000) (on file with the Duke Law Journal) [hereinafter
Announcement]. This extension affected both the ICANN-DoC MoU of
November 25, 1998, see Memorandum of Understanding, supra,
and ICANN's Cooperative Research and Development Agreement, see
Cooperative Research & Development Agreement, at http://www.icann.org/committees/dns-root/crada.htm
(last visited Aug. 18, 2000) (on file with the Duke Law Journal)
[hereinafter CRADA]. In addition, ICANN reported that DoC extended
ICANN's no-fee contract to run the Internet Assigned Number Authority (IANA):
"the IANA contract extension results from ICANN's acceptance of a new provision
in the contract allowing the U.S. Government unilaterally to extend the
period of performance by up to six months." Announcement, supra.
In taking this decision to extend ICANN's tenure, DoC appears to have sought no public comment, giving the public no notice that it was considering an extension. Nor were there any calls for competing bids. Furthermore, as of October 1, 2000, no announcement of the ICANN extension appears at the website devoted to ICANN matters, http://www.ntia.doc.gov/ntiahome/domainname/domainnamehome.htm (last visited Oct. 1, 2000) (on file with the Duke Law Journal), nor is there a press release on the NTIA press site, http://www.ntia.doc.gov/ntiahome/press/pressindex.htm (last visited Oct. 1, 2000) (on file with the Duke Law Journal). |
| 48. | Courts are generally in agreement that, at least following the appropriate rulemaking or adjudication, the federal government may rely on expert technical judgments of private groups, for example, letting Underwriters Laboratories determine which electrical goods are properly wired. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1935) (suggesting that "matters of a more or less technical nature" could be delegated to private parties). An example of such delegation is Saint Louis, Iron Mountain, & S. Ry. Co. v. Taylor, 210 U.S. 281, 286-87 (1908) (upholding delegation of authority to private railroad association to fix mandatory height for drawbars on railroad cars). |
| 49. | See generally Froomkin, supra note 24 (surveying charters of and rules applicable to existing federal government corporations). |
| 50. | The Federal Asset Disposition Administration (FADA) was established as a Colorado corporation by the Federal Home Loan Bank Board; the GAO later opined that the agency lacked congressional authority to establish a corporation. See 1988 Op. Comp. Gen. B-226708.3 (1988) (concluding that the Federal Home Loan Bank Board "acted improperly" by establishing FADA and that FADA employees are not federal employees because they fail to satisfy criteria in 5 U.S.C. § 2105(a) (1994), despite being "engaged in the performance of federal functions"); 134 CONG. REC. E1185 (1988) (remarks of Rep. Kanjorski) (alleging that FADA was established to evade pay caps, personnel ceilings, and "budgetary and legal constraints"); see also Harold Seidman, The Quasi World of the Federal Government, BROOKINGS REV., Summer 1988, at 23, 26 (summarizing the controversy over FADA). ICANN differs from FADA because DoC did not actually create ICANN itself. See GAO Report, supra note 28, at 12-14. |
| 51. | See infra note 474 and accompanying text. |
| 52. | For continuing coverage of these issues, see ICANNWATCH, at http://www.icannwatch.org (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 53. | See, e.g., Bret Fausett, Want to Create a Secret Committee?, at http://www.lextext.com/21days.html (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 54. | There are only so many ways to set out basic technical information. The next nine paragraphs borrow heavily from A. Michael Froomkin, Semi-Private International Rulemaking: Lessons Learned from the WIPO Domain Name Process, in REGULATING THE GLOBAL INFORMATION SOCIETY (Christopher T. Mardsen ed., forthcoming 2000), available at http://www.law.miami.edu/~froomkin/articles/tprc99.pdf (on file with the Duke Law Journal). |
| 55. | See P. Mockapetris, Request for Comments (RFC) 1034, Domain Names-Concepts and Facilities 29, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc1034.txt (Nov. 1987) (on file with the Duke Law Journal). |
| 56. | Domain Name Process, supra note 13. |
| 57. | See id. |
| 58. | More recently, so-called "name-based virtual hosting" introduced the possibility of operating unrelated web servers, identified by different domain names, but with a single IP address. See R. Fielding et al., RFC 2616, Hypertext Transfer Protocol-HTTP/1.1, USC Information Sciences Institute, at http://www.isi.edu/in-notes/rfc2616.txt § 5.2 (June 1999) (on file with the Duke Law Journal). |
| 59. | See Neil Randall, How DNS Servers Work, PC MAG., Sept. 24, 1996, at 217; Neil Randall, What Happens When You Click, PC MAG., Oct. 22, 1996, at 245. |
| 60. | See, e.g., F.root-servers.net, Internet Software Consortium, at http://www.isc.org/services/public/F-root-server.html (last visited Aug. 17, 2000) (reporting that "F answers more than 260 million DNS queries per day, making it one of the busiest DNS servers in the world. In fact, it is often the busiest root nameserver on the Internet") (on file with the Duke Law Journal). |
| 61. | See RONY & RONY, supra note 10, at 513-72 (describing the "Alterweb"). |
| 62. | A list of the ccTLDs, gTLDs, and their registries (NICs) appears at TLD Registries, World Internetworking Alliance, at http://www.wia.org/database/DNS_registries.htm (last visited Aug. 19, 2000) (on file with the Duke Law Journal). |
| 63. | See ISO 3166-1:1997 Codes for the Representation of Names of Countries and Their Subdivisions-Part I: Country Codes, Deutsches Institut für Normung, at http://www.din.de/gremien/nas/nabd/iso3166ma/codlstp1/en_listpl.html (June 23, 2000) (on file with the Duke Law Journal). The ISO, a private standards body, has created these codes for computer information systems processing purposes. It is not a treaty organization. See Frequently Asked Questions, International Organization for Standardization, at http://www.iso.ch/infoe/faq.htm (last modified Nov. 29, 1999) (on file with the Duke Law Journal). |
| 64. | See Communiqué of the Government Advisory Committee, Berkman Center for Internet and Society, at http://cyber.law.harvard.edu/icann/santiago/archive/GAC-Comminuque-mtg3.html (last modified Aug. 24, 1999) (asserting that "delegation of a ccTLD Registry is subject to the ultimate authority of the relevant public authority or government") (on file with the Duke Law Journal). |
| 65. | Delegation of the .mil domain is under the authority of the DDN NIC. See D. Engebretson & R. Plzak, RFC 1956, Registration in the MIL Domain 1, USC Information Sciences Institute, at http://www.isi.edu/in-notes/rfc1956.txt (June 1996) (on file with the Duke Law Journal). |
| 66. | Delegation of the .gov TLD is under the authority of the U.S. Federal Networking Council (FNC). See FNC, RFC 1816, U.S. Government Internet Domain Names 1, USC Information Sciences Institute, at http://www.isi.edu/in-notes/rfc1816.txt (Aug. 1995) (on file with the Duke Law Journal). |
| 67. | The .arpa domain is used for all reverse IP lookups and is about to be expanded to include other infrastructure functions. See, e.g., P. Faltstrom, E.164 Number and DNS draft-ietf-enum-e164-dns-03, Internet Engineering Task Force, at http://www.ietf.org/internet-drafts/draft-ietf-enum-e164-dns-03.txt (last visited Aug. 18, 2000) (proposing a method of using the DNS for storage of telephone numbers, relying on domain e164.arpa) (on file with the Duke Law Journal). |
| 68. | The shared registry is a communal data pool made up of the registration data for the gTLDs collected by all ICANN-approved registries and maintained by the NSI registry. See Network Solutions, Glossary of Terms, VeriSign Global Registry Services, at http://www.nsiregistry.com/glossary/gt3.html#shresy (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 69. | See Network Solutions, Shared Registration System, VeriSign Global Registry Services, at http://www.nsiregistry.com/affairs/SRS_Overview_02.pdf (last visited Sept. 21, 2000) (on file with the Duke Law Journal); Registrar Accreditation Agreement, supra note 42. |
| 70. | See supra note 19. |
| 71. | See Network Solutions, supra note 69; Registrar Accreditation Agreement, supra note 42. |
| 72. | For example, anyone with access to the "nslookup" command on a unix-based
machine connected to the Internet can confirm that google.com has been
associated with 64.209.200.100 and 64.209.200.101 rather than with just
one IP number, as is commonly the case. Similarly, anyone able to access
CNAME records can see that www.yahoo.com maps into a CNAME (i.e., an alias)
that, in turn, maps into five distinct address records:
www.yahoo.com. 23h59m18s IN CNAME www.yahoo.akadns.net. |
| 73. | For a more strident view that the root must be unique, see generally Brian Carpenter, IAB Technical Comment on the Unique DNS Root, at http://www.iab.org/iab/IAB-Technical-Comment.txt (last visited Oct. 10, 2000) (on file with the Duke Law Journal). |
| 74. | See RONY & RONY, supra note 10, at 60-61. |
| 75. | Cf. How To Use New Domain Names, Open Root Server Confederation, at http://support.open-rsc.org/How_To/ (last visited Aug. 17, 2000) (explaining how to access new domain names not yet recognized by an ISP) (on file with the Duke Law Journal). |
| 76. | See Chris Peckham, Comp.protocols.tcp-ip.domains Frequently Asked Questions, at http://www.intac.com/~cdp/cptd-faq/ (last visited Aug. 18, 2000) (on file with the Duke Law Journal). |
| 77. | See PAUL ALBITZ & CRICKET LIU, DNS AND BIND 27 (3d ed. 1998). |
| 78. | See Conrad et al., supra note 7 :
The root of the Internet name space consists of a single file, the root zone file, which describes the delegations of the top-level domains and the associated records necessitated by the DNS protocol to implement those delegations. Currently, this file is maintained by Network Solutions, Incorporated of Herndon, Virginia, and is made available to the 12 secondary servers from the primary a.root-server.net. Change control of this file is held by the IANA with changes, typically modifications of the name servers for top-level domains, being made approximately once or twice a week. |
| 79. | See supra note 62 and accompanying text (discussing 244 ccTLds and 8 gTLDs). |
| 80. | A list of the root servers and their physical locations appears in Conrad et al., supra note 7, at Appendix A. |
| 81. | See ISC BIND, Internet Software Consortium, at http://www.isc.org/products/BIND/ (last visited Aug. 18, 2000) (noting that the "BIND DNS Server is used on the vast majority of name serving machines on the Internet") (on file with the Duke Law Journal). |
| 82. | Cooperative Agreement No. NCR-9218742, Amendment 11, http://www.networksolutions.com/legal/internic/cooperative-agreement/amendment11.html
(Oct. 6, 1998) (on file with the Duke Law Journal) [hereinafter
Amendment 11]:
While NSI continues to operate the primary root server, it shall request written direction from an authorized USG official before making or rejecting any modifications, additions or deletions to the root zone file. Such direction will be provided within ten (10) working days and it may instruct NSI to process any such changes directed by NewCo when submitted to NSI in conformity with written procedures established by NewCo and recognized by the USG. |
| 83. | In Network Solutions, Inc. v. Umbro Int'l, Inc., 529 S.E.2d 80 (Va. 2000), the supreme court of Virginia held that a registrant's interest in a domain name-an interest that is quite similar to DoC's interest in the root file-was merely contractual and hence could not be garnished. See id. at 80. On the other hand, Congress recently passed the Anticybersquatting Consumer Protection Act, Pub. L. No. 106-43 § 3(a)(2), 5, 113 Stat. 218, 220 (1999), which authorizes in rem actions against domain names. Since in rem proceedings are traditionally used to attach property, this argues that domain names are property. The Umbro court, however, was completely unpersuaded by this reasoning, see Umbro, 529 S.E.2d at 86 n.12, as it was by Network Solutions, Inc.'s concession at trial that domain names are a form of intangible personal property. See id. at 86. |
| 84. | 17 U.S.C. § 105 (1994) ("Copyright protection under this title is not available for any work of the United States Government . . . ."). |
| 85. | There are 13 root servers, but as one of them also has the root file, there are actually only 12 at the next level of the hierarchy. |
| 86. | The "E," "G," and "H" root servers are operated by U.S. government agencies. The "A," "B," and "L" root servers are operated by U.S. government contractors. Only the "I," "K," and "M" root servers are operated in other countries (Sweden, the United Kingdom, and Japan, respectively). See Conrad et al., supra note 7, at Appendix A. Of the non-federal-governmental U.S.-based servers, "C" is operated by psi.net, "D" by the University of Maryland, and "F" by the Internet Software Consortium (the group that publishes BIND, see supra note 81). The authoritative list at ftp://ftp.rs.internic.net/domain/named.root reports that the "J" root server is "temporarily housed at NSI (InterNIC)." Id. Other sources, however, report that the status of the "J" root server remains to be determined. See, e.g., Conrad et al., supra note 7; Jun Murai, Root Server System Advisory Committee, Presentation to ICANN Public Meeting, Yokohama, Japan, slide 6, Berkman Center for Internet and Society, at http://cyber.law.harvard.edu/icann/yokohama/archive/presentations/murai-071500/index.html (July 15, 2000) (on file with the Duke Law Journal). |
| 87. | The exemplar of this view is Carpenter, supra note 73. |
| 88. | See infra notes 171-75 and accompanying text. |
| 89. | See Preliminary Report: Meeting of the ICANN Board in Yokohama, Res. 00.59-00.62, at http://icann.org/minutes/prelim-report-16jul00.htm (July 16, 2000) (on file with the Duke Law Journal) [hereinafter Yokohama Report]. The ICANN board also authorized ICANN's president "to negotiate agreements or amendments of agreements with the United States Department of Commerce providing for the Corporation to assume responsibility for maintaining the root-zone file and establishing appropriate arrangements for approval of root-zone modifications, such agreements to be presented to the Board for approval or ratification." Id. |
| 90. | See ICANN/DOC Memorandum of Understanding, Amendment 1, at http://www.icann.org/nsi/amend1-jpamou-04nov99.htm (Nov. 4, 1999) ("If DOC withdraws its recognition of ICANN or any successor entity by terminating this MOU, ICANN agrees that it will assign to DOC any rights that ICANN has in all existing contracts with registries and registrars.") (on file with the Duke Law Journal) [hereinafter Memorandum of Understanding, Amendment 1]. The agreement speaks only of "registries" and "registrars," not of "root servers," but the root servers should be considered "registries" (of registries) for this purpose. |
| 91. | See id. |
| 92. | See supra Part I.A (describing the function of IP numbers). |
| 93. | As discussed further below, IANA is, if not the government, at least a government contractor. See infra Part II.B.3. |
| 94. | See IANA Report on Request for Delegation of the .ps Top-Level Domain,
at http://www.icann.org/general/ps-report-22mar00.htm
(Mar. 22, 2000) (on file with the Duke Law Journal). The report
stated:
the United Nations Statistics Division notified the ISO 3166 Maintenance Agency that it had included "Occupied Palestinian Territory" on the United Nations list of Standard Country and Area Codes for Statistical Use. On 30 September 1999, the ISO 3166 Maintenance Agency announced that effective 1 October 1999 it was adding the alpha-2 code "ps" to the ISO 3166-1 list to designate "Occupied Palestinian Territory."Id. |
| 95. | See supra note 82 (quoting the relevant portion of Amendment 11). |
| 96. | On May 22, 2000, a command of "dig@a.root-servers.net. ps. ns" from
"spitfire.law.miami.edu" produced the following response indicating that
.ps is part of the "A" root server's database:
; <<>> DiG 8.2 <<>> @a.root-servers.net. ps. ns |
| 97. | While it would be easy to remove a country code from the root, the effects would only be felt as the data file was copied and echoed around the Internet-a process that would take time. A nation that became aware of the danger could ensure that its servers used a non-polluted cache or, if it was too late, should be able to repair the damage in no more time than it took to cause it. Furthermore, removing a ccTLD from the root would be effective only if a country were dependent on it. If Ruritania primarily uses domains in the .rr domain, then it might suffer when they are not responding; if, on the other hand, Ruritanian institutions are heavy users of .com, .org, and .net, any attempt to disrupt Ruritanian communications via the DNS must identify its registrations in each of the registries for those domains, which is a more complex task and involves securing the cooperation of the registries. |
| 98. | See Registrar Accreditation Agreement, supra note 42, §§ II.E-F. |
| 99. | See UDRP, supra note 20. |
| 100. | See, e.g., McNeil Consumer Brands Inc. v. Mirweb Solutions, Case No. D2000-0612 (WIPO Aug. 3, 2000) ("The Respondent has provided incomplete contact information in its domain name registration and has on the face of it taken steps to conceal its true identity by 'vesting' the ownership of the 'tylenol.org' domain name in a series of internet entities."), available at http://arbiter.wipo.int/domains/decisions/html/d2000-0612.html (last visited Aug. 18, 2000) (on file with the Duke Law Journal). |
| 101. | See UDRP, supra note 20. |
| 102. | It, therefore, leaves out many of the most interesting and juicy political machinations, and particularly slights a number of fascinating, but failed, initiatives to reorganize domain name policy. For full accounts, see RONY & RONY, supra note 10, at 89-136; Craig Simon, Internet Governance Goes Global, in INTERNATIONAL RELATIONS IN A CONSTRUCTED WORLD 147, 160-65 (Vendulka Kubálková et al. eds., 1998); Craig Simon, Roots of Power: The Rise of Dot Com and the Decline of the Nation State (2000) (placing the history of the "DNS War" in the context of modern social thought) (unpublished manuscript, on file with the Duke Law Journal); Gordon Cook, Secret Meeting Shows ICANN-IBM Dependence, THE COOK REPORT ON INTERNET (Jan. 2000) (criticizing ICANN's "agenda of control" as well as the role several individuals have had in the development of ICANN's current position as registrar), at http://cookreport.com/icannoverall.shtml (on file with the Duke Law Journal); Milton Mueller, ICANN and Internet Governance: Sorting Through the Debris of "Self-Regulation," 1 INFO 497 (1999) (arguing that the Clinton administration's guiding principle of "industry self-regulation" only "served to obscure the policy issues raised by the historic transition" and that the government, ironically, retains "'policy authority' over the DNS root indefinitely"), at http://www.icannwatch.org/archives/muell.pdf (on file with the Duke Law Journal); Ellen Rony & Peter Rony, Domain Name System in Congress and US Govt., at http://www.domainhandbook.com/congress.html (last visited Aug. 18, 2000) (cataloguing agreements between the government, ICANN and others) (on file with the Duke Law Journal). |
| 103. | See infra notes 325-30. |
| 104. | See infra notes 139-43. |
| 105. | See supra note 15. |
| 106. | See Peggy Karp, RFC 226, Standardization of Host Mnemonics 1, USC Information Sciences Institute, at http://www.isi.edu/in-notes/rfc226.txt (Sept. 20, 1971) (providing host name mnemonics so that users would not be required to know the "idiosyncrasies of each list") (on file with the Duke Law Journal). |
| 107. | See Richard W. Watson, RFC 101, Notes on the Network Working Group Meeting 1, USC Information Sciences Institute, at http://www.isi.edu/in-notes/rfc101.txt (Feb. 23, 1971) (noting that Peggy Karp was summarizing the first 100 Internet standards documents) (on file with the Duke Law Journal). |
| 108. | See S. Williamson & L. Nobile, RFC 1261, Transition of NIC Services, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc1261.txt (Sept. 1991) (noting the role of DISA in the transition of NIC from SRI) (on file with the Duke Law Journal). |
| 109. | See P. Mockapetris, RFC 882, Domain Names-Concepts and Facilities, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc0882.txt (Nov. 1983) (describing the "conceptual framework of the domain system and some uses") (on file with the Duke Law Journal); P. Mockapetris, RFC 883, Domain Names: Implementation and Specification, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc0883.txt (Nov. 1983) (discussing "the implementation of domain name servers and resolvers . . . and . . . the use of domain names in the context of existing mail systems and other network software") (on file with the Duke Law Journal); P. Mockapetris, RFC 973, Domain System Changes and Observations, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc0973.txt (Jan. 1986) (updating Domain Name Specifications RFC 882 and RFC 883, suggesting some operational guidelines, and discussing "some experiences and problem areas in the present system") (on file with the Duke Law Journal). |
| 110. | See Robert H. Zakon, Hobbes' Internet Timeline v5.1, §§ 1981, 1985, Internet Society, at http://www.isoc.org/guest/zakon/Internet/History/HIT.html (last visited Sept. 20, 2000) (on file with the Duke Law Journal). |
| 111. | See A.M. Rutkowski, History of Supporting Internet Names and Numbers, World Internetworking Alliance, at http://www.wia.org/pub/identifiers/identifier_management.gif (last visited Sept. 20, 2000) (on file with the Duke Law Journal). |
| 112. | See White Paper, supra note 15, at 31,741. |
| 113. | See Jon Postel, RFC 349, Proposed Standard Socket Numbers, USC Information Sciences Institute, at http://www.isi.edu/in-notes/rfc349.txt (May 30, 1972) (proposing the assignment of official socket numbers for use by standard protocols) (on file with the Duke Law Journal). |
| 114. | See, e.g., News Release, University of Southern California, Internet Pioneer Jon Postel Dies at 55 (Oct. 19, 1998) (describing Postel's work and accomplishments while at USC), http://www.usc.edu/dept/News_Service/releases/stories/35680.html (on file with the Duke Law Journal). |
| 115. | On the history of the IAB, see Internet [Architecture] [Activities] Board: Known History, World Internetworking Alliance, at http://www.wia.org/pub/iab-history.htm (Nov. 4, 1998) (on file with the Duke Law Journal). |
| 116. | See J. Postel & J. Reynolds, RFC 920, Domain Requirements 1, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc0920.txt (Oct. 1984) (on file with the Duke Law Journal). |
| 117. | RFC 920 defined .com, .gov, .edu, .mil, .org, and the ccTLDs. See id. at 2; see also RONY & RONY, supra note 10, at 113-16 (calling RFC 920 "historic"). |
| 118. | See Zakon, supra note 110, § 1985. |
| 119. | See id. § 1988. |
| 120. | See Pincus, supra note 43; Zakon, supra note 110, § 1988. |
| 121. | See The Role of the Internet Assigned Numbers Authority (IANA),
Internet Society, at http://www.isoc.org/isoc/media/releases/iana.shtml
(Jan. 16, 1998) (on file with the Duke Law Journal):
The IANA is the name for the function for the allocation and assignment of various identifiers needed for the operation of the Internet, which function was assigned by DARPA to the Information Sciences Institute (ISI) of the University of Southern California pursuant to contracts between DARPA and ISI. Under the DARPA contracts, ISI (through the IANA function) has the discretionary authority to delegate portions of this function, and has delegated that portion of the responsibility concerning some aspects of numeric network and autonomous system identifiers to an Internet Numbers Registry (IR), previously performed by SRI International and currently performed by NSI. See RFC 1174 and Section H.1., NSF Solicitation for Network Information Services Manager for NSFnet and the NREN ("ISI (as the IANA) ha[s] delegated to the DISA NIC (currently NSI) the registration of users for the Internet"). |
| 122. | See Pincus, supra note 43. |
| 123. | See RONY & RONY, supra note 10, at 123. |
| 124. | The first RFC reference to IANA is in December 1988, in Internet Architecture Board, RFC 1083, IAB Official Protocol Standards 1, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc1083.txt (Dec. 1988) (on file with the Duke Law Journal); see also U.S. DOD [Internet] Assigned Numbers [Authority], Network Information Centers (NICs), Contractors, and Activities: Known Detailed History, World Internetworking Alliance, at http://www.wia.org/pub/iana.html (last visited Aug. 17, 2000) (on file with the Duke Law Journal). The first RFC by IANA staff appears to be J. Postel & J. Reynolds, RFC 1060, Assigned Numbers, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc1060.txt (Mar. 1990) (on file with the Duke Law Journal). |
| 125. | See generally RFCs 1700, 1340, 1060, 1010, 990, 960, 943, 923, 900, 870, 820, 790, 776, 770, 762, 758, 755, 750, 739, 604, 503, 433, and 349, available by number, title, author or other identifier at Finding and Retrieving RFCs from the RFC Editor Site, Internet Society, at http://www.rfc-editor.org/rfc.html (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 126. | See generally A. Michael Froomkin, Habermas@discourse.net: Towards a Critical Theory of Cyberspace (forthcoming 2000), available at http://www.discourse.net (on file with the Duke Law Journal). |
| 127. | Postel, supra note 113, at 1. |
| 128. | See S. Williamson & L. Nobile, RFC 1261, Transition of NIC Services 1, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc1261.txt (Sept. 1991) (announcing the transfer of NIC to GSI) (on file with the Duke Law Journal). |
| 129. | See E-mail from Anthony M. Rutkowski, Director, Center for Next Generation Internet, to Professor A. Michael Froomkin, University of Miami School of Law (May 27, 2000) (on file with the Duke Law Journal). |
| 130. | See Dan L. Burk, Federalism in Cyberspace, 28 CONN. L. REV. 1095, 1099 (1996). |
| 131. | On cooperative agreements, see Thomas N. Bulleit, Jr., Public-Private Partnerships in Biomedical Research: Resolving Conflicts of Interest Arising Under the Federal Technology Transfer Act of 1986, 4 J.L. & HEALTH 1 (1989/1990) (describing cooperative agreements between private industry and scientists in federal laboratories); Brett Frishmann, Innovations and Institutions: Rethinking the Economics of U.S. Science and Technology Policy, 24 VT. L. REV. 347, 391-92 (2000) (proposing a framework for the coordination of U.S. science and technology policy); Nathan A. Adams, IV, Comment, Monkey See, Monkey Do: Imitating Japan's Industrial Policy in the United States, 31 TEX. INT'L L.J. 527 passim (1996) (contrasting the Japanese and American technology approaches). |
| 132. | J. Postel, RFC 1591, Domain Name System Structure and Delegation, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc1591.txt (Mar. 1994) (on file with the Duke Law Journal). |
| 133. | Even by February 1996, there were fewer than 300,000 domain names registered with NSI, of which 232,004 were in .com. See Registration Services, Performance Measures for February, 1996, at http://www.networksolutions.com/legal/internic/coop-stats/feb96.html (last visited Aug. 20, 2000) (on file with the Duke Law Journal). |
| 134. | See Postel, supra note 132. |
| 135. | Id. § 4. The document also stated a simple policy on ccTLDs: "The IANA is not in the business of deciding what is and what is not a country." Id. |
| 136. | See J. Reynolds & J. Postel, RFC 1700, Assigned Numbers, Internet Engineering Task Force, at http://www.ietf.org/rfc/rfc1700.txt (Oct. 1994) (on file with the Duke Law Journal). |
| 137. | Id. |
| 138. | See RONY & RONY, supra note 10, at 122-23. |
| 139. | See Stuart D. Levi et al., The Domain Name System & Trademarks, in THIRD ANNUAL INTERNET LAW INSTITUTE 449, 454-55 (1999). |
| 140. | See Mueller, supra note 102, at 500. |
| 141. | NSF Cooperative Agreement No. NCR-9218742, at http://www.networksolutions.com/legal/internic/cooperative-agreement/agreement.html (Jan. 1, 1993) (on file with the Duke Law Journal). |
| 142. | See id. art. 7. |
| 143. | Id. art. 3(c). |
| 144. | Vint Cerf, RFC 1174, IAB Recommended Policy on Distributing Internet Identifier Assignment and IAB Recommended Policy Change to Internet "Connected" Status, USC Information Sciences Institute, at http://www.isi.edu/in-notes/rfc1174.txt (last visited Aug. 20, 2000) (on file with the Duke Law Journal). |
| 145. | Postel, supra note 132. |
| 146. | See NSI-NSF Cooperative Agreement, Amendment 4, at http://www.networksolutions.com/legal/internic/cooperative-agreement/amendment4.html
(Sept. 13, 1995) (on file with the Duke Law Journal). NSI kept only
$70 of the $100 two-year fee. The other $30 went to a special government
fund for the enhancement of the "Intellectual Infrastructure" of the Internet.
Congress retroactively authorized this tax (or fee). See Thomas
v. Network Solutions, Inc., 176 F.3d 500, 505-06 (D.C. Cir. 1999).
As NSF prepared to change its policy on fees, Science Applications International Corporation (SAIC), a major defense contractor, acquired NSI. See Laura Pearlman, Truth, Justice and the Dot-Com Wars, AM. LAW., Mar. 31, 2000, http://www.lawnewsnetwork.com/practice/techlaw/news/A20216-2000Mar31.html (on file with the Duke Law Journal). Tony Rutkowski recalls that the idea of charging for domain names long pre-dated the 1995 acquisition of NSI by SAIC: Consonant with NSF's technology transfer concept in the original 1992 RFP, it was always contemplated that charges would exist. Some of the proposals actually contemplated full-scale immediate charges. However, at first, NSF was reluctant to require it after the award to NSI. However, it became almost immediately obvious to the review team (of which I was a part), that charges would be needed to provide sufficient money to do the with the scaling registrations. In addition, almost every country NIC was already charging, and the "free" registration was causing enormous problems from parties that would just come and register tens of thousands of names.E-mail from Anthony M. Rutkowski, Director for Center for Next Generation Internet, to Professor A. Michael Froomkin, University of Miami School of Law (May 27, 2000) (on file with the Duke Law Journal). |
| 147. | See, e.g., NSI Domain Name Dispute Policy, § 9, Communications Media Center at New York Law School, at http://www.cmcnyls.edu/Misc/NSIDNRP3.HTM (Feb. 25, 1998) (describing the process by which NSI would turn off a registrant's domain name upon request by a holder of a trademark in the same character string whose registration date preceded the domain name's registration unless the registrant also had a valid trademark in that character string) (on file with the Duke Law Journal). On the NSI dispute policies, see generally Carl Oppedahl, Analysis and Suggestions Regarding NSI Domain Name Trademark Dispute Policy, 7 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 73 (1996) (describing the role of NSI as the primary domain name registration authority); Carl Oppedahl, Remedies in Domain Name Lawsuits: How is a Domain Name Like a Cow?, 15 J. MARSHALL J. COMPUTER & INFO. L. 437 (1997) (evaluating the NSI dispute policy). |
| 148. | Postel endorsed the October 1995 plan to have ISOC take over IANA that was floated by Professor Lawrence Landweber. Landweber later served as an intermediary who helped recruit ICANN board members. To view the text of the October 1995 proposal, see Lawrence Landweber, DNS Proposal, at http://dns.vrx.net/news/by_date/old/1995/Nov/isocplan.html (Oct. 1, 1995) (on file with the Duke Law Journal). |
| 149. | See Jon Postel, New Registries and the Delegation of International Top Level Domains, Draft-postel-iana-itld-admin-02.txt, § 5.6, at http://www.newdom.com/archive/draft-postel-iana-itld-admin-02.txt (last visited Aug. 20, 2000) (on file with the Duke Law Journal). |
| 150. | See Jon Postel, IANA Charter Draft to ISOC Board of Trustees, World Internetworking Alliance, at http://www.wia.org/pub/postel-iana-draft1.htm (July 20, 1994) (offering the first draft of a proposed IANA charter) (on file with the Duke Law Journal). |
| 151. | The story behind this is complex and well beyond the scope of this Article. For a vivid account, see Mueller, supra note 102, at 501. For a timeline, see Simon, supra note 27. |
| 152. | See Todd Spangler, NSI Adopts Prepayment Model, ZDNET INTER@CTIVE WEEK ONLINE (July 22, 1999) (noting the change from the 30-day policy to payment in advance), at http://www.zdnet.com/intweek/stories/news/0,4164,2298737,00.html (on file with the Duke Law Journal). |
| 153. | For a survey of the law and equities of name speculation, see generally Jessica Litman, The DNS Wars: Trademarks and the Internet Domain Name System, 4 J. SMALL & EMERGING BUS. L. 149 (2000). |
| 154. | See id. at 154-55. |
| 155. | 947 F. Supp. 1227, 1237-40 (N.D. Ill. 1996). |
| 156. | The Act provides: "The owner of a famous mark shall be entitled . . . to an injunction against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark . . . ." 15 U.S.C. § 1125(c) (1994). |
| 157. | 141 F.3d 1316, 1325 (9th Cir. 1998). |
| 158. | See Jeffrey J. Look, The Virtual Wild, Wild West (WWW): Intellectual Property Issues In Cyberspace-Trademarks, Service Marks, Copyrights, and Domain Names, 22 U. ARK. LITTLE ROCK L.J. 49, 64 (1999) (noting that cybersquatters know "it will often cost a company much more to litigate this issue rather than pay a ransom of a few thousand dollars"); see also Panavision Int'l, 141 F.3d at 1319 (describing Toeppen's $13,000 demand for panavision.com). |
| 159. | See, e.g., Towards Fair, Open, Technically Sound Global Internet Policy, Open Root Server Confederation, at http://www.open-rsc.org (last visited Sept. 18, 2000) ("[W]e feel the DNS should have new TLD's added to it.") (on file with the Duke Law Journal); Chris Oakes, When Dot Com Isn't Enough, WIRED NEWS (Sept. 1, 1999) (describing super-root and other initiatives), at http://wirednews.com/news/print/0,1294,21507,00.html (on file with the Duke Law Journal). |
| 160. | Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 579 (2d Cir. 2000). |
| 161. | See id. at 580. |
| 162. | See id. at 588. |
| 163. | As the White Paper itself noted, "An increasing percentage of Internet users reside outside of the U.S., and those stakeholders want to participate in Internet coordination." White Paper, supra note 15, at 31,742. An example of an effort sparked in part by foreign concerns over the United States' domination of the DNS was the International Ad Hoc Committee, which united ISOC, IANA, WIPO, and the ITU, among others, and produced a proposal for DNS governance. See Establishment of a Memorandum of Understanding of the Generic Top Level Domain Name Space of the Internet Domain Name System (gTLD-MoU), International Ad Hoc Committee, at http://www.iahc.org./gTLD-MoU.html (Feb. 28, 1997) (on file with the Duke Law Journal). |
| 164. | See Name.Space, 202 F.3d at 577; Improvement of Technical Management of Internet Names and Addresses, 63 Fed. Reg. 8825, 8827 (1998) [hereinafter Green Paper]. By the time NSF formally transferred to DoC the responsibility for administering the NSI Cooperative Agreement on September 8, 1998, see Name.Space, 202 F.3d at 579, DoC had been taking an increasingly major role in U.S. Internet policy for more than a year. The transfer may not have been unrelated to the NSF Appropriations Act of 1999, which prohibited NSF from expending any funds to support DNS administration. See Departments of Veteran Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, Pub. L. No. 105-276, 112 Stat. 2461, 2505 (1998) (declaring that "none of the funds . . . may be obligated or expended by the National Science Foundation to enter into or extend a grant, contract, or cooperative agreement for the support of administering the domain name and numbering system of the Internet"). Within a month of the transfer, J. Beckwith Burr, then the Acting Associate Administrator for International Affairs at DoC's National Telecommunications and Information Administration (NTIA), became NSI's Program Officer, the person in charge of administering the Cooperative Agreement. See NSI-Cooperative Agreement No. NCR-9218742, Amendment 10, at http://www.networksolutions.com/legal/internic/cooperative-agreement/amendment10.html (Oct. 1, 1998) (listing Burr as the Federal Program Officer) (on file with the Duke Law Journal). |
| 165. | See Request for Comments on the Registration and Administration of Internet Domain Names, 62 Fed. Reg. 35,896, 35,896 (1997). |
| 166. | See, e.g., John Simons, In Cyberspace, Nobody Knows You're Ira: For Magaziner, There's Life After Health Care, U.S. NEWS ONLINE (June 16, 1997) (suggesting that Magaziner could redeem himself if his commercial ground rules are adopted by other countries), at http://www.usnews.com/usnews/issue/970616/16ira.htm (on file with the Duke Law Journal). |
| 167. | WILLIAM J. CLINTON & ALBERT GORE, JR., A FRAMEWORK FOR GLOBAL ELECTRONIC COMMERCE 1 (1997) (discussing the need for a set of globally recognized commercial law rules, a "'Uniform Commercial Code' for Electronic Commerce"), available at http://www.iitf.nist.gov/eleccomm/ecomm.htm (on file with the Duke Law Journal). This document is known as the "e-commerce White Paper" and is sometimes confused with the later "DNS White Paper" discussed in this Article. See supra note 15. For a wide-ranging critique of the e-commerce White Paper, see Symposium, The Legal and Policy Framework for Global Electronic Commerce: A Progress Report, 14 BERKELEY TECH. L.J. 502 (1999). |
| 168. | See White Paper, supra note 15, at 31,741; Green Paper, supra note 164, at 8825. |
| 169. | "Green paper" is a British locution for a "government document that proposes and invites discussion on approaches to a problem." Merriam-Webster Online: WWWebster Dictionary, at http://www.m-w.com/cgi-bin/dictionary.htm (1997) (on file with the Duke Law Journal). |
| 170. | The Green Paper's web publication of January 30, 1998, preceded the official February 20, 1998, publication date in the Federal Register. See White Paper, supra note 15, at 31,741. |
| 171. | See Magaziner Continues to Build Consensus for Domain Name Solution, at http://www.iperdome.com/releases/980127.htm (Jan. 27, 1998) (describing various January 1998 meetings between Magaziner and interested parties and disclosing before its January 30, 1998, publication the likely features of the Green Paper) (on file with the Duke Law Journal). |
| 172. | See Craig Simon, The Technical Construction of Globalism: Internet Governance and the DNS Crisis, at http:www.flywheel.com/ircw/dnsdraft.html (last visited Aug. 19, 2000) (on file with the Duke Law Journal). |
| 173. | See Kenneth Cukier, Testing Times for Net Guardians, 199 COMMUNICATIONS WEEK INT'L 1, ¶¶ 4-7 (Feb. 16, 1998) (outlining Postel's "test" and the response of the other root servers), at http://www.totaltele.com/cwi/199/199news11.html (on file with the Duke Law Journal). |
| 174. | See Simon, supra note 172 ("Critics charged he had 'hijacked' the root."). |
| 175. | See id. Postel's letter to the other root server operators read
as follows:
Hello. As the Internet develops there are transitions in the management arrangements. The time has come to take a small step in one of those transitions. At some point on down the road it will be appropriate for the root domain to be edited and published directly by the IANA. As a small step in this direction we would like to have the secondaries for the root domain pull the root zone (by zone transfer) directly from IANA's own name server. This is "DNSROOT.IANA.ORG" with address 198.32.1.98. The data in this root zone will be an exact copy of the root zone currently available on the A.ROOT-SERVERS.NET machine. There is no change being made at this time in the policies or procedures for making changes to the root zone. This applies to the root zone only. If you provide secomdary [sic] service for any other zones, including TLD zones, you should continue to obtain those zones in the way and from the sources you have been. -jon.Id. (quoting Jon Postel). |
| 176. | See Cook, supra note 102 ("Ira asserted that he had assured Postel that disobedience would result in criminal charges being filed against him."). |
| 177. | See Green Paper, supra note 164, at 8826. |
| 178. | See 15 U.S.C. § 1512 (1994):
It shall be the province and duty of said Department to foster, promote, and develop the foreign and domestic commerce, the mining, manufacturing, and fishery industries of the United States; and to this end it shall be vested with jurisdiction and control of the departments, bureaus, offices, and branches of the public service hereinafter specified, and with such other powers and duties as may be prescribed by law. |
| 179. | See 47 U.S.C. § 902(b)(2)(H) (1994) (giving NTIA "[t]he authority to provide for the coordination of the telecommunications activities of the executive branch and assist in the formulation of policies and standards for those activities, including (but not limited to) considerations of interoperability, privacy, security, spectrum use, and emergency readiness"). Note that this does not in itself include any rulemaking power. |
| 180. | Id. § 902(b)(2)(I) (giving NTIA "authority to develop and set forth telecommunications policies pertaining to the Nation's economic and technological advancement and to the regulation of the telecommunications industry"). This also does not include any rulemaking power: the power to "develop and set forth" policy is not the power to promulgate it or to make rules. |
| 181. | See id. § 902(b)(2)(M) (giving NTIA "[t]he authority to conduct studies and make recommendations concerning the impact of the convergence of computer and communications technology"). Again, this does not give NTIA rulemaking power. |
| 182. | Id. § 904(c)(1). |
| 183. | Id. § 904(c)(1). Rulemaking is also strikingly absent among the activities described on NTIA's web page. See NTIA Information, National Telecommunications and Information Administration, at http://www.ntia.doc.gov/ntiahome/aboutntia.htm (last visited Aug. 19, 2000) (on file with the Duke Law Journal). |
| 184. | See, e.g., Developments in the Law-The Law of Cyberspace, 112 HARV. L. REV. 1574, 1666-67 (1999) (summarizing the domestic objections of trademark holders and others); Official Comments on the Green Paper (Technical Management of Internet Names and Addresses) from the Internet Council of Registrars (CORE), at http://corenic.org/documents/official.htm (last visited Aug. 17, 2000) (stating the objections of an association of non-U.S. registrars) (on file with the Duke Law Journal); RIPE CENTR Response to Green Paper from U.S. Government, Council of European National Top-Level Domain Registries, at http://www.centr.org/docs/statements/greenpaper.html (Mar. 13, 1998) (providing a response from non-U.S. registries) (on file with the Duke Law Journal). |
| 185. | See White Paper, supra note 15. |
| 186. | See 5 U.S.C. § 553(b)(A) (1994). |
| 187. | The Supreme Court defines a statement of policy as "'statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.'" Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) (quoting ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 30 n.3 (1947)); see also J.E.M. Broad. Co. v. FCC, 22 F.3d 320 (D.C. Cir. 1994) (holding that an FCC rule change was not subject to the APA's notice-and-comment requirement because it was a procedural change); cf. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311 (1992) (arguing that, in general, agencies should not use interpretive rules and policy statements to bind the public, either as a legal matter or as a practical matter). |
| 188. | White Paper, supra note 15, at 31,743. |
| 189. | Id. at 31,749. |
| 190. | Id. |
| 191. | Id. |
| 192. | Id. |
| 193. | Id. at 31,750. While the White Paper itself does not use the name "NewCo," the use of the term by DoC to describe the entity called for in the White Paper dates at least from Amendment 11, supra note 82, in August 2000. |
| 194. | White Paper, supra note 15, at 31,749. |
| 195. | Id. |
| 196. | Id. at 31,750. |
| 197. | Id. |
| 198. | Id. |
| 199. | Id. |
| 200. | Id. |
| 201. | Id. |
| 202. | Id. |
| 203. | Id. at 31,751. |
| 204. | Id. |
| 205. | See Simon, supra note 172 (noting that the NSF announced in 1997 that it did not plan to renew its cooperative agreement with NSI). |
| 206. | White Paper, supra note 15, at 31,751. |
| 207. | End-users and individual domain name registrants had no representation in the original ICANN structure, and ICANN fought hard to prevent direct elections in which they could participate. See, e.g., Comments of Common Cause, supra note 39 (objecting to ICANN's plans to revise its bylaws) (on file with the Duke Law Journal); ICANN's Global Elections: On the Internet, for the Internet, Common Cause and Center for Democracy and Technology, at http://www.cdt.org/dns/icann/study/icannstudy.pdf (Mar. 2000) (recommending reforms to the election process and listing concerns about ICANN proposals) (on file with the Duke Law Journal). |
| 208. | See Weinberg, supra note 39, at 238 & n.261. ICANN would soon make opening NSI's virtual monopoly of the registration business to increased competition a priority, further benefiting entrants to the registration business. |
| 209. | See Simon, supra note 172. |
| 210. | Joe Sims reports that after Jon Postel died, he considered ICANN to be his client, "fully realizing it was incorporeal." Once ICANN was formed, the board hired him as its counsel. Contrary to the account in Gordon Cook, New IANA Formation Ending Amidst Uncertainty, Congressional Inquiry of Magaziner & the Death of Jon Postel, THE COOK REPORT ON INTERNET (Oct. 27, 1998), at http://www.cookreport.com/whorules.shtml (on file with the Duke Law Journal), Mr. Sims was never retained by USC. See E-mail from Joe Sims, former Counsel, ICANN, to Professor A. Michael Froomkin, University of Miami School of Law (Sept. 10, 2000) (on file with the Duke Law Journal). |
| 211. | Postel broadly endorsed the White Paper approach. See Framework for Discussion 1, Internet Assigned Numbers Authority, at http://www.iana.org/discussion.html (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 212. | See Gina Paik & P-R Stark, The Debate over Internet Governance: Fred Baker, § IV.a, Berkman Center for Internet and Society, at http://cyber.law.harvard.edu/is99/governance/baker.html (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 213. | See Mueller, supra note 102, at 507
(characterizing the emphasis on non-partisanship as "a ruse"). Joe Sims
describes the process of choosing the board as follows:
[Jon Postel] came to the conclusion that it would be silly and counter-productive to have an initial board made up of the combatants because the likelihood was that they would continue their combat on the board and so he determined that the initial board ought to be people who were not active combatants in the wars leading up to the creation of ICANN. So that was the one unilateral decision that was made. So we cut out all the active combatants that people had recommended, and that left us with you know a fairly long list of people who had not been active combatants. And with those we asked everybody who we could find to give us their reactions to them. Do you know this person? Do you like this person? Are they any good? Would they be interested, etc. So over time winnowed the list down to a manageable number and started approaching people and got turned down by a number of people. And had a number of other people say they were willing to do that and finally, I think actually the day before the ICANN proposal was turned into the Department of Commerce, got our last person to agree to be on the initial board and put forth a slate, and again with the notion that (this was Jon's belief) this group of people would attract consensus support from the internet community.Paik & Stark, supra note 212, § IV.d; see also Todd Spangler, Interim ICANN Board to Redraft Bylaws, ZDNET INTER@CTIVE WEEK ONLINE (Oct. 28, 1998) (quoting an anonymous U.S. government official as supporting the selection of neutrals for the board), at http://www.zdnet.com/intweek/stories/news/0,4164,2156478,00.html (on file with the Duke Law Journal). |
| 214. | See supra note 151 and accompanying text. |
| 215. | For a revealing first-person account of the lack of background in the DNS of the initial ICANN board members, see ICANN Public Meeting Transcript 7, Berkman Center for Internet and Society, at http://cyber.law.harvard.edu/icann/cambridge-1198/archive/transintro.html (Nov. 14, 1998) (on file with the Duke Law Journal). |
| 216. | See id. |
| 217. | See Internet Society (ISOC) All About ISOC: Jon Postel, Internet Society, at http://www.isoc.org/postel/iana.shtml (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 218. | White Paper, supra note 15, at 31,749. |
| 219. | ICANN's decision to reflect (some) user interests by functional groupings in the ASO, PSO, and especially DNSO, comes out of the corporatist tradition in which "interested groups have been given authoritative powers of determination, usually in conjunction with a public administrative agency." Louis L. Jaffe, Law Making by Private Groups, 51 HARV. L. REV. 201, 234 (1937); see also ORGANIZING INTERESTS IN WESTERN EUROPE: PLURALISM, CORPORATISM, AND THE TRANSFORMATION OF POLITICS passim (Suzanne Berger ed., 1981) (describing old-style corporatism based on representation of and sovereignty by socioeconomic interest groups); Arthur F.P. Wasenberg, Neo-Corporatism and the Quest for Control: The Cuckoo Game, in PATTERNS OF CORPORATIST POLICY-MAKING 83, 84-85 (Gerhard Lehmbruch & Philippe C. Schmitter eds., 1982) (noting that "corporatism should be considered as a conflict-displacing, rather than as a conflict-resolving, device"). |
| 220. | The seven constituencies are: ccTLD registries; commercial and business entities; gTLD registries; ISP and connectivity providers; noncommercial domain name holders; registrars; and trademark, other intellectual property, and anti-counterfeiting interests. See About DNSO, Domain Name Supporting Organization, at http://www.dnso.org/dnso/aboutdnso.html (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 221. | See id. |
| 222. | The right firm could join (1) commercial and business entities; (2) ISP and connectivity providers; (3) registrars; and (4) trademark, other intellectual property, and anti-counterfeiting interests. See By-Laws of the Intellectual Property Constituency, § III, Intellectual Property Constituency, at http://ipc.songbird.com/IPC_Bylaws_dec_15_correct.htm (Nov. 30, 1999) (on file with the Duke Law Journal); Commercial and Business Entities Constituency Charter, § II.A, Business Constituency Domain Name Supporting Organization, at http://www.bcdnso.org/Charter.htm (Oct. 25, 1999) (on file with the Duke Law Journal); The DNSO Registrar Constituency, § II, Domain Name Supporting Organization, at http://www.dnso.org/constituency/registrars/Registrars.Articles.html (last visited Aug. 17, 2000) (on file with the Duke Law Journal); ISPs and Connectivity Providers, How to Become a Member, Domain Name Supporting Organization, at http://www.dnso.org/constituency/ispcp/membership.html (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 223. | See generally Froomkin, supra note 126 (discussing the informal, decentralized nature of the Internet standard-setting process). |
| 224. | The GAO investigation was requested by H.R. CONF. REP. NO. 106-479, accompanying the Consolidated Appropriations Act for fiscal year 2000 (which incorporates the fiscal year 2000 appropriation for the Department of Commerce). The General Accounting Office was asked to review the relationship between ICANN and the Department of Commerce. See generally GAO Report, supra note 28. A transcript of the House Subcommittee on Oversight and Investigations' July 22, 1999, hearing Domain Name System Privatization: Is ICANN Out of Control? is available at http://comnotes.house.gov/cchear/hearings106.nsf (last visited Aug. 18, 2000) (on file with the Duke Law Journal). |
| 225. | Mr. Sims signed the DoC-ICANN MoU in November 1998, after Dr. Postel
had died, as ICANN's counsel. See Memorandum of Understanding,
supra note 47. Mr. Sims describes his relationship
with the U.S. government as follows:
[W]hile I have no specific recollections, I'm sure we discussed . . . the Board recruitment process from time to time. Of course, we solicited recommendations from [the U.S. government] as we did from many others; got relatively little useful input, but did get some recommendations (from non-US governments) that were useful inputs. . . . [W]e did not seek the approval of any government of any individual or the final slate, but we certainly listened to their views as we did to others offered.E-mail from Joe Sims, former Counsel, ICANN, to Professor A. Michael Froomkin, University of Miami School of Law (May 19, 2000) (on file with the Duke Law Journal). |
| 226. | See GAO Report, supra note 28, at 12-13 (concluding that the GCCA was not violated). Magaziner's role is mentioned in ICANN's response to the United States House Committee on Commerce's inquiry about ICANN's role in the possible privatization of the DNS. See ICANN-Response to Chairman Bliley, § 4.4, at http://www.icann.org/correspondence/bliley-response-08july99.htm (July 8, 1999) (on file with the Duke Law Journal). |
| 227. | See Froomkin, supra note 24, at 560 (discussing the greater independence enjoyed by FGCs). One perhaps extreme example is Lt. Col. Oliver North's plan to create a "stand-alone" entity that would channel funds from foreign governments to the Contras and elsewhere. The plan contemplated the creation of a covert self-financing, federally owned corporation with a state charter, in order that its activities would be immune from congressional interference or control. See H.R. REP. NO. 100-433, at 332 (1987). |
| 228. | 31 U.S.C. §§ 9101-10 (1994). |
| 229. | See Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 387-90 (1995) (describing the necessity for the regulatory provisions of the GCCA). At the end of the Second World War, the United States had 63 wholly-owned and 38 partly-owned FGCs, as well as 19 non-corporate credit agencies and hundreds of military-run enterprises. See ANNMARIE HAUCK WALSH, THE PUBLIC'S BUSINESS 29 (1978). |
| 230. | See Oliver Peter Field, Government Corporations: A Proposal, 48 HARV. L. REV. 775, 781-82 (1935) (describing the problems caused by the wide variation among then-existing corporations). |
| 231. | 31 U.S.C. § 9102 ("An agency may establish or acquire a corporation to act as an agency only by or under a law of the United States specifically authorizing the action."). |
| 232. | Lebron, 513 U.S. at 396. |
| 233. | 934 F. Supp. 440 (D.D.C. 1996). |
| 234. | See id. at 442. |
| 235. | See id. at 447. |
| 236. | Id. |
| 237. | See infra notes 294-96 and accompanying text. |
| 238. | See Letter from Milton J. Socolor, Comptroller General of the United States (Acting), to Sen. David Pryor, 71 Comp. Gen. 155, 157 (Jan. 17, 1992), available at 1992 WL 18518. |
| 239. | Id. |
| 240. | Id. |
| 241. | See In re Hon. Ted Stevens, B-278820, 1998 WL 465124, at *2 (Comp. Gen. Feb. 10, 1998) (reviewing the FCC's implementation of section 254(h) of the Communications Act). |
| 242. | Id. |
| 243. | Id. |
| 244. | See id. at *3. |
| 245. | The FCC relied on 47 U.S.C. § 154(i) (1994), which states that "[t]he Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions." Id. |
| 246. | Id. |
| 247. | Id. (emphasis added). In general, "'[t]he committee does not consider the practices of chartering wholly owned Government corporations without prior authorization . . . under State charters to be desirable.'" Id. (quoting H.R. REP. NO. 79-856, at 11 (1945)). |
| 248. | See id. |
| 249. | For related suggestions regarding reform of the GCCA, see generally Froomkin, supra note 24. |
| 250. | See supra notes 190-91 and accompanying text. |
| 251. | See Simon, supra note 172. |
| 252. | See, e.g., David S. Hilzenrath, Network Solutions Dropped as Registrar of Internet Domains, WASH. POST, Apr. 24, 1997, at E1 (noting the contention by NSI that it could continue to administer .com even if NSF ended its contractual relationship). |
| 253. | See, e.g., Rajiv Chandrasekaran, Commerce Threatens to Weaken NSI's Grip; Internet Address Manager Warned, WASH. POST, July 10, 1999, at E1 (noting NSI's claims to continued rights to .com, .org and .net). |
| 254. | "[E]xcept as otherwise expressly provided herein, nothing in this paragraph is intended to alter any intellectual property rights of the USG or NSI established in the Cooperative Agreement." Amendment 11, supra note 82. |
| 255. | The contract neglected to require that the SRS be open source, which created opportunities for NSI to use nondisclosure clauses to its benefit. |
| 256. | See Amendment 11, supra note 82. DoC and NSI later agreed to a fee of $9 per year per second-level domain, for at least four years, extendable to eight in some circumstances. See Amendment to Financial Assistance Award 1 (May 6, 1999), at http://www.networksolutions.com/legal/internic/cooperativeagreement/amendment13coverpage.pdf (on file with the Duke Law Journal); NSI-Cooperative Agreement No. NCR-9218742, Amendment 13, at http://www.networksolutions.com/legal/internic/cooperative-agreement/amendment13.html (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 257. | See Amendment 11, supra note 82. |
| 258. | See id. (quoting the relevant clause). |
| 259. | Id. The Agreement continued: "For purposes of this agreement, NewCo is the not-for-profit corporation described in the Statement of Policy and recognized by the USG in accordance with the provisions of the Statement of Policy for so long as the USG continues its recognition of NewCo." Id. |
| 260. | Id. |
| 261. | See id. |
| 262. | See Niall McKay, Critics Decry New Net Government, WIRED NEWS (Oct. 8, 1998), at http://www.wirednews.com/news/politics/0,1283,15482,00.html (on file with the Duke Law Journal). |
| 263. | Notably, a competing proposal had grown out of a series of public meetings hosted by self-organized groups called the Internet Forum on the White Paper (IFWP) and the Boston Working Group (BWG). See Boston Working Group, Letter of Submission, National Telecommunications and Information Administration, at http://www.ntia.doc.gov/ntiahome/domainname/proposals/bosgrp/submission-letter.html (Sept. 28, 1998) (on file with the Duke Law Journal). |
| 264. | See Mueller, supra note 102, at 506-07. |
| 265. | See supra notes 39, 207. |
| 266. | See Letter from J. Beckwith Burr, Associate Administrator (Acting), National Telecommunications and Information Administration, to Herb Schorr, Executive Director, USC Information Sciences Institute (Oct. 20, 1998), National Telecommunications and Information Administration, http://www.ntia.doc.gov/ntiahome/press/icann102098.htm (on file with the Duke Law Journal). |
| 267. | See Articles of Incorporation (As Revised), at http://www.icann.org/general/articles.htm (Nov. 21, 1998) (on file with the Duke Law Journal). |
| 268. | See NTIA Reviewing ICANN November 6 Submission, National Telecommunications and Information Administration, at http://www.ntia.doc.gov/ntiahome/press/ICANN111098.htm (Nov. 10, 1998) (on file with the Duke Law Journal). The complete set of proposed and frequently amended bylaws are now available from Ellen Rony's excellent ICANN bylaws web page. See Ellen Rony, ICANN: Announcements, Bylaws, Board and Budget, at http://www.domainhandbook.com/icann1.html#bylaws (last visited Aug. 17, 2000) (on file with the Duke Law Journal). |
| 269. | See Memorandum of Understanding, supra note 47. |
| 270. | Id. § II.B. |
| 271. | Id. |
| 272. | Id. § II.C. |
| 273. | Id. |
| 274. | Pincus, supra note 43. |
| 275. | See Memorandum of Understanding, supra note 47, § VII. |
| 276. | See supra note 47 and accompanying text. |
| 277. | See supra notes 204-06 and accompanying text. |
| 278. | A CRADA is usually an agreement in which, as the United States Geological
Survey explained:
[t]he collaborating partner agrees to provide funds, personnel, services, facilities, equipment or other resources needed to conduct a specific research or development effort while the Federal government agrees to provide similar resources but not funds directly to the partner. . . . The CRADA vehicle provides incentives that can help speed the commercialization of Federally-developed technology, making it an excellent technology transfer tool.What Is a CRADA?, United States Geological Survey, at http://www.usgs.gov/tech-transfer/what-crada.html (last modified May 23, 1997) (on file with the Duke Law Journal). |
| 279. | See CRADA, supra note 47. The CRADA was signed in June 1999. See GAO Report, supra note 28, at 17. |
| 280. | A copy of what appears to be this agreement, dated January 1, 1999, appears as Appendix 21 to ICANN's application for tax-exempt status. See Form 1023 (Appendix 21), at http://www.icann.org/financials/tax/us/appendix-21.htm (last modified Sept. 4, 2000) (on file with the Duke Law Journal); see also Form 1023 (Appendix 19), at http://www.icann.org/financials/tax/us/appendix-19.htm (last modified Sept. 4, 2000) (detailing a loanout agreement for two employees) (on file with the Duke Law Journal). For an account of the IANA transition, see Gordon Cook, Paris DNSO Draft Gathers Wide Support, THE COOK REPORT ON INTERNET (Mar. 1999), at http://www.cookreport.com/07.12.shtml (on file with the Duke Law Journal). |
| 281. | See Cook, supra note 280. |
| 282. | See GAO Report, supra note 28, at 18. |
| 283. | See Contract Between ICANN and the United States Government for Performance of the IANA Function, at http://www.icann.org/general/icann-contract-09feb00.htm (last visited Sept. 21, 2000) (showing a copy of the purchase order) (on file with the Duke Law Journal). According to an ICANN press release dated September 4, 2000, the purchase order was extended for one year. See Announcement, supra note 47. |
| 284. | See Letter from J. Beckwith Burr, DoC, to Esther Dyson & Mike Roberts, ICANN (July 8, 1999), http://www.icann.org/correspondence/doc-to-icann-08july99.htm (on file with the Duke Law Journal); see also Pincus Testimony, National Telecommunications and Information Administration, at http://www.ntia.doc.gov/ntiahome/congress/pincus19990722.htm (last visited Aug. 18, 2000) (calling for the elimination of the fee and for the adoption of a financing method "in accordance with the representative, bottom-up process called for in the White Paper") (on file with the Duke Law Journal). |
| 285. | See Letter from Esther Dyson, Interim Chair, ICANN, to J. Beckwith Burr, DoC (July 19, 1999), http://www.icann.org/correspondence/icann-to-doc-19july99.htm (on file with the Duke Law Journal); see also Maura Ginty, ICANN Drops Registrar Fee, at http://www.internetnews.com/bus-news/print/0,,3_164621,00.html (July 20, 1999) ("Bowing to protests against the controversial move, ICANN has deferred its proposed $1 per-year, per-domain registrar fee program.") (on file with the Duke Law Journal). |
| 286. | See Courtney Macavinta, ICANN Running Out of Money, CNET NEWS (July 7, 1999), at http://news.cnet.com/news/0-1005-200-344529.html?sas.mail (on file with the Duke Law Journal). |
| 287. | See List of ICANN Contributors, at http://www.icann.org/contributors.htm (last visited Aug. 18, 2000) (on file with the Duke Law Journal). |
| 288. | See Macavinta, supra note 286. |
| 289. | See Gordon Cook, Follow the Money, THE COOK REPORT ON INTERNET (Sept. 1, 1999), at http://dns.vrx.net/news/by_date/1999/Sep/cook1.html (on file with the Duke Law Journal). |
| 290. | See Letter from John R. Patrick, Vice President of Internet Technology, IBM, to Esther Dyson, Interim Chair, ICANN (Sept. 24, 1999), http://www.icann.org/correspondence/ibm-letter-24sept99.htm (on file with the Duke Law Journal). |
| 291. | ICANN's web page currently acknowledges receiving loans of $150,000 from Cisco Systems, Inc., $500,000 from MCI Worldcom Corp., $175,000 from 3Com Corp., and $175,000 from Deutsche Telekom. See Loan Agreement Information, at http://www.icann.org/general/loaninfo.htm (last modified Feb. 1, 2000) (on file with the Duke Law Journal). The interest rate is not disclosed. See Financial Statements, at http://www.icann.org/financials/financial-report-fye-30jun99.htm (June 30, 1999) (noting $800,000 in loans) (on file with the Duke Law Journal); 2000-01 Budget, supra note 41 (noting that "[d]uring the summer of 1999, unsecured loans were obtained by the corporation in the total amount of $1.025 million"); I Think ICANN: Loan Keeps Group Afloat, THE STANDARD (Aug. 20, 1999) (stating that ICANN would receive up to $1 million from IBM and MCI and that ICANN had $800,000 in debt), at http://www.thestandard.net/article/display/0,1151,6020,00.html (on file with the Duke Law Journal). |
| 292. | See 9-Month Financial Report for Period Ending 31 March 2000, at http://www.icann.org/financials/financial-report-fpe-31mar00.htm (last modified Feb. 14, 2000) (on file with the Duke Law Journal) [hereinafter 9-Month Financial Report]. |
| 293. | See infra note 320 and accompanying text. |
| 294. | See GAO Report, supra note 28, at 19. |
| 295. | See Task Force on Funding-Draft Final Report, at http://www.icann.org/tff/final-report-draft-30oct99.htm (Oct. 30, 1999) (on file with the Duke Law Journal). |
| 296. | See, e.g., Jeri Clausing, European Domain Operators Refuse to Pay Bills, CYBERTIMES (June 7, 2000) (describing ICANN's attempt to bill country code management organizations and those organizations' refusals to acknowledge ICANN's invoices), at http://www.nytimes.com/library/tech/00/06/cyber/articles/07domain.html (on file with the Duke Law Journal). |
| 297. | See, e.g., Jay Fenello, ICANN's ccTLD Tax, Matrix Information and Directory Services, Inc., at http://www.mids.org/mn/1006/za.html (June 2000) (on file with the Duke Law Journal); see also Clausing, supra note 296 (characterizing the proposed Internet address tax as representative of the sometimes-misguided leadership of ICANN). |
| 298. | See Letter from J. Beckwith Burr, Associate Administrator (Acting), NTIA, to David Graves, Director, Business Affairs, Network Solutions, Inc. (Feb. 26, 1999), National Telecommunications and Information Administration, http://www.ntia.doc.gov/ntiahome/domainname/icannnewco.htm (on file with the Duke Law Journal). |
| 299. | See 9-Month Financial Report, supra note 292. |
| 300. | See, e.g., Letter from Esther Dyson, Interim Chair, ICANN, to Ralph Nader, Founder, Center for Study of Responsive Law, & James Love, Director, Consumer Project on Technology 1 (June 15, 1999) (commenting that "NSI has apparently concluded that its interests [in maintaining a monopoly on providing DNS services] are not consistent with ICANN's success"), http://www.icann.org/chairman-response.htm (on file with the Duke Law Journal). |
| 301. | See DoC-NSI Cooperative Agreement, Amendment 19, § I.B.10 (Nov. 4, 1999), http://www.icann.org/nsi/coopagmt-amend19-04nov99.htm (on file with the Duke Law Journal) [hereinafter Amendment 19]. |
| 302. | See id. § I.B.4.A. |
| 303. | See id. § I.B.1. |
| 304. | See id. § 1.B.2.A. |
| 305. | See id. § I.B.2.C. |
| 306. | See id. § 1.B.2.E. |
| 307. | Alternate root domain names "function" in the sense of working for those who use a machine that knows how to find them; they do not "function" in the sense of allowing any but a tiny minority of Internet users to access an Internet resource via the domain name. See supra note 61 and accompanying text. |
| 308. | Amendment 19, supra note 301, § I.B.4.E. |
| 309. | See supra notes 47, 269 and accompanying text. |
| 310. | See ICANN-NSI Registry Agreement, supra note 42. |
| 311. | See Memorandum of Understanding, Amendment 1, supra note 90. |
| 312. | See id. |
| 313. | See id. |
| 314. | Id. |
| 315. | ICANN-NSI Registry Agreement, supra note 42. |
| 316. | See id. |
| 317. | Id. |
| 318. | ICANN-NSI Registrar Transition Agreement, at http://www.icann.org/nsi/icann-nsi-transition-
04nov99.htm (Nov. 4, 1999) (on file with the Duke Law Journal). |
| 319. | See id. § 1. |
| 320. | See id. § 4. |
| 321. | NSI-Registrar License and Agreement, at http://www.icann.org/nsi/nsi-rla-04nov99.htm (Nov. 4, 1999) (on file with the Duke Law Journal). Among other things, this agreement limited the terms of users' registrations to 10 years. See id. § 2.3. |
| 322. | The agreement reads:
Registrar shall have developed and employ in its domain name registration business an electronic or paper registration agreement, including a domain name dispute policy, a copy of which is attached to this Agreement as Exhibit A (which may be amended from time to time by Registrar, provided a copy is furnished to the Registry three (3) business days in advance of any such amendment), to be entered into by Registrar with each SLD holder as a condition of registration. Registrar shall include terms in its agreement with each SLD holder that are consistent with Registrar's duties to NSI hereunder.Id. § 2.7. |
| 323. | See id. § 5.2. |
| 324. | See id. § 6.2. While it might appear that the mutual promises to follow the relevant RFCs made registrants third-party beneficiaries of the earlier NSI-NSF agreement, the two courts that have examined the issue have been singularly unpersuaded. See Beverly v. Network Solutions, Inc., No. C-98-0337-VRW, 1998 WL 320829, at *6 (N.D. Cal. June 12, 1998) (holding as a matter of federal common law that the NSI-NSF agreement evinced insufficient evidence of an intent to create a third-party benefit); Oppedahl & Larson v. Network Solutions, Inc., 3 F. Supp. 2d 1147, 1159 (D. Colo. 1998) (same). The prime beneficiary from the addition of the disclaimer to the MoU was NSI itself. Section 6.2 removed any danger that a subsequent court might view the third-party beneficiary in a way that could impose liability on NSI. |
| 325. | 15 U.S.C. § 1512 (1994). |
| 326. | 47 U.S.C. § 902(b)(2)(H) (1994). |
| 327. | See Vietnam Veterans of Am. v. Secretary of the Navy, 843 F.2d 528, 537 (D.C. Cir. 1988) ("A binding policy is an oxymoron."). |
| 328. | See Presidential Memorandum on Electronic Commerce, 33 WEEKLY COMP. PRES. DOC. 1006, 1008 (1997) ("I direct the Secretary of Commerce to support efforts to make the governance of the domain name system private and competitive and to create a contractually based self-regulatory regime that deals with potential conflicts between domain name usage and trademark laws on a global basis."). |
| 329. | 15 U.S.C. § 1525 (1994). |
| 330. | See GAO Report, supra note 28, at 15-19. |
| 331. | 5 U.S.C. § 702 (1994). |
| 332. | It is also, arguably, bad policy. See Harry T. Edwards, Where Are We Heading with Mandatory Arbitration of Statutory Claims in Employment?, 16 GA. ST. U. L. REV. 293, 295 (1999) (warning that "[w]hen public laws are enforced in the private fora . . . we have no assurance that the underlying public interests are fully satisfied"). |
| 333. | DoC calls ICANN's job "coordination." White Paper, supra note 15, at 31,744 ("[U]nder the Green Paper proposal, the U.S. Government would gradually transfer these coordination functions to the new corporation . . . with the goal of having the new corporation carry out operational responsibility by October 1998."). |
| 334. | Letter from ICANN to Rep. Tom Bliley, Chairman, United States House Committee on Commerce (July 8, 1999), http://www.icann.org/correspondence/bliley-response-o8july99.htm (on file with the Duke Law Journal). |
| 335. | Id. |
| 336. | Id. |
| 337. | Dyson, supra note 300, at 1. |
| 338. | See Harold I. Abramson, A Fifth Branch of Government: The Private Regulators and Their Constitutionality, 16 HASTINGS CONST. L.Q. 165, 193 (1989). |
| 339. | See George W. Liebmann, Delegation to Private Parties in American Constitutional Law, 50 IND. L.J. 650, 709-10 (1975). |
| 340. | See id. at 701-04. |
| 341. | See infra notes 371-72 and accompanying text. |
| 342. | White Paper, supra note 15, at 31,747. |
| 343. | See Domain Name Process, supra note 13. |
| 344. | See Froomkin, A Catalog of Process Failures, supra note 13. |
| 345. | See id. |
| 346. | See Second Staff Report, supra note 13, §§ 2.1-2.4. |
| 347. | See Registrar Accreditation Agreement, supra note 42, § II.K. ("In the event that ICANN adopts a policy or procedure for resolution of disputes concerning SLD names that by its terms applies to Registrar, Registrar shall adhere to the policy or procedure."). |
| 348. | This is different from imposing conditions on government contractors via procurement, see generally Lars Noah, Administrative Arm-Twisting in the Shadow of Congressional Delegations of Authority, 1997 WIS. L. REV. 873 (evaluating the various informal mechanisms that federal regulators use to evade the substantive limitations on their agency's delegated authority, and arguing that greater agency self-restraint and congressional oversight are the only realistic mechanisms for curbing overreaching by those regulators), because whatever one may think of the constitutional status of contractual conditions, the policy choice to embed the condition in the contract has been made directly by the executive branch, not delegated to a private body, and the condition applies directly to the contractor, rather than empowering it to make rules affecting relations between third parties. |
| 349. | Actual costs vary among the providers and also depend on whether the arbitration uses a one-person or three-person panel. Costs run between $750 and $4500 for one disputed domain name. See CPR Supplemental Rules to ICANN's Rules for Uniform Domain Name Dispute Resolution Policy, § 12, CPR Institute for Dispute Resolution, at http://www.cpradr.org/ICANN_RulesAndFees.htm (last modified Sept. 15, 2000) (noting that the fee for one panelist is $2000 and the fee for three panelists is $4500) (on file with the Duke Law Journal); Schedule of Fees, § 1, eResolution Consortium, at http://www.eresolution.ca/services/dnd/schedule.htm (Oct. 2, 2000) (noting that the fee for one panelist is $750 and the fee for three panelists is $2200) (on file with the Duke Law Journal); Schedule of Fees, National Arbitration Forum Dispute Resolution for Domain Names, at http://www.arbforum.com/domains/domain-fees.html (Dec. 23, 1999) (noting that the fee for one panelist is $750 and the fee for three panelists is $2250) (on file with the Duke Law Journal); Schedule of Fees Under the ICANN Policy, World Intellectual Property Organization, at http://arbiter.wipo.int/domains/fees/index.html (Aug. 15, 2000) (noting that the fee for one panelist is $1500 and that the fee for three panelists is $3000) (on file with the Duke Law Journal). |
| 350. | I can imagine only two benefits to registrants: (1) an innocent registrant who would have been sued in court might find an arbitration cheaper to defend (a gain thoroughly overcome by the increased number of filings resulting from the lower cost of arbitration to plaintiffs); and (2) a registrant whose name was on "hold" by NSI might be better off because, as a result of the imposition of the UDRP, his name is no longer on "hold." |
| 351. | There are currently four approved providers. See Approved Providers for Uniform Domain Name Dispute Resolution Policy, at http://www.icann.org/udrp/approved-providers.htm (last modified May 21, 2000) (on file with the Duke Law Journal) [hereinafter Approved Providers]. Readers are reminded that I am involved in organizing one of the providers. To the extent that I am arguing the whole structure is illegitimate, though, this is surely an argument against interest. |
| 352. | See Letter from Professor A. Michael Froomkin, University of Miami School of Law, & Professor David G. Post, Temple University School of Law, to ICANN Board of Directors 1 (Jan. 26, 2000), available at http://www.icannwatch.org/archives/essays/950296910.shtml (last modified Feb. 11, 2000) (on file with the Duke Law Journal). |
| 353. | See National Arbitration Forum Dispute Resolution for Domain Names, Supplemental Rules, Rule 7, at http://www.arbforum.com/domains/domain-rules.html (Oct. 24, 1999) ("A party may submit additional written statements and documents to The Forum and the opposing party(s) not later than five (5) calendar days after the date the Response is submitted or the last date the Response was due to be submitted to the Forum, whichever occurs first.") (on file with the Duke Law Journal). Although couched in neutral terms allowing either party to avail itself of the supplemental brief, it is obvious that a provision allowing either party to file a supplemental brief five days after the defendant's response is designed to favor plaintiffs. |
| 354. | See Rules for Uniform Domain Name Dispute Resolution Policy, § 6(c), at http://www.icann.org/udrp/udrp-rules-24oct99.htm (Oct. 24, 1999) (on file with the Duke Law Journal) [hereinafter UDRP Rules]. A sole arbitrator is at the complainant's expense, see id. § 6(b), as are all three if the complainant opted for a three-person panel from the start. See id. § 6(c). |
| 355. | See id. §§ 6(b)-(c), (e). In my experience, however, complainants frequently propose arbitrators from the providers' lists. There is also a likelihood that an unsophisticated respondent will tend to ask the provider for the names of arbitrators if the respondent has no experience with the UDRP and has no other source of information on whom to propose. Furthermore, if a party fails to propose names, or the provider is unable to secure the services of a party-proposed arbitrator in five days, the provider names a substitute. Providers, thus, have a greater influence than is apparent from Rule 6(e), even in three-arbitrator panels. |
| 356. | ICANN does not require the Provider to achieve actual notice to domain
name registrants. See UDRP Rules, supra note 354,
§ 2(a). Instead, the mere sending of all of the following suffices
to trigger respondent's 20-day period to respond to a complaint:
(i) sending the complaint to all postal-mail and facsimile addresses (A) shown in the domain name's registration data in Registrar's Whois database for the registered domain-name holder, the technical contact, and the administrative contact and (B) supplied by Registrar to the Provider for the registration's billing contact; and (ii) sending the complaint in electronic form (including annexes to the extent available in that form) by e-mail to:(A) the e-mail addresses for those technical, administrative, and billing contacts; (iii) sending the complaint to any address the Respondent has notified the Provider it prefers and, to the extent practicable, to all other addresses provided to the Provider by Complainant under Paragraph 3(b)(v).Id. |
| 357. | See UDRP Rules, supra note 354, § 4(a). |
| 358. | See id. § 5(a). |
| 359. | See id. § 6(b). |
| 360. | See id. § 15(b). |
| 361. | See id. § 16(a). |
| 362. | See UDRP, supra note 20, § 4(k). |
| 363. | See generally Froomkin, A Catalog of Process Failures, supra note 13. |
| 364. | See UDRP, supra note 20, § 4(k). |
| 365. | See generally Froomkin, A Commentary on WIPO's Management, supra note 13. |
| 366. | See UDRP Rules, supra note 354, § 3(b)(xiii). |
| 367. | See, e.g., JORGE A. VARGAS, MEXICAN LAW: A TREATISE FOR LEGAL PRACTITIONERS AND INTERNATIONAL INVESTORS § 20.2 (1998) (stating that, in Mexico, "[o]nce drafted, a complaint cannot be refiled"). |
| 368. | Having participated in both the WIPO and ICANN processes, I can certainly testify to their views from personal experience. See also Froomkin, A Catalog of Process Failures, supra note 13 (criticizing an ICANN dispute resolution policy proposal). |
| 369. | See New TLD Application Instructions, at http://www.icann.org/tlds/new-tld-application-instructions-15aug00.htm (Aug. 15, 2000) (setting the $50,000 fee and describing numerous other requirements for valid applications) (on file with the Duke Law Journal). The size of the fee, especially the fact that it is non-refundable, has been criticized as a de facto decision to price nonprofit groups and applicants wishing to provide free or low-cost domain names out of the game, since they are least likely to be able to buy a $50,000 lottery ticket. See Cyber-Federalist No. 3: Why ICANN's Elections Matter, Computer Professionals for Social Responsibility, at http://www.cpsr.org/internetdemocracy/cyber-fed/Number_3.html (Aug. 26, 1999) (stating that hindering such potential applicants "may not have been the intent, but it is the effect") (on file with the Duke Law Journal). |
| 370. | Joseph P. Liu, Legitimacy and Authority in Internet Coordination: A Domain Name Case Study, 74 IND. L.J. 587, 604 (1999) (footnotes omitted). |
| 371. | IETF-ICANN Memorandum of Understanding Concerning the Technical Work of the Internet Assigned Numbers Authority, § 4, at http://www.icann.org/general/ietf-icann-mou-01mar00.htm (Mar. 10, 2000) (on file with the Duke Law Journal). Interestingly, this MoU defines "IANA" as "IANA-Internet Assigned Numbers Authority (a traditional name, used here to refer to the technical team making and publishing the assignments of Internet protocol technical parameters). The IANA technical team is now part of ICANN." Id. |
| 372. | Id. § 4.3. |
| 373. | 2000-01 Budget, supra note 41, § IV.1. |
| 374. | Id. § IV.2.A. |
| 375. | Id. § IV.2.B. In addition, ICANN itself once admitted that it was making policy. In its 1999 status report to DoC, ICANN complained that NSI was refusing to bow to ICANN's "policy authority." Status Report to the Department of Commerce, § IV, at http://www.icann.org/statusreport-15june99.htm (June 15, 1999) (on file with the Duke Law Journal) [hereinafter Status Report]. Similarly, Amendment 11 and the NTIA's report to the House Commerce Committee both speak of policy decisions that ICANN will be called upon to make. See Pincus, supra note 43 ("Under Amendment 11, NewCo's Responsibilities specifically include the establishment and implementation of DNS policy and the terms, including licensing terms, applicable to new and existing gTLDs and registries under which registries, registrars and gTLDs are permitted to operate." (paraphrasing White Paper, supra note 15, at 31,751)). |
| 376. | See ICANN Officers: Andrew McLaughlin, at http://www.icann.org/biog/mclaughlin.htm (last visited Aug. 19, 2000) (on file with the Duke Law Journal). |
| 377. | See 2000-01 Budget, supra note 41, § V (5)(a) (including the position, then vacant, in ICANN's organization plan). |
| 378. | 2 F. Supp. 2d 22 (D.D.C. 1998), aff'd on other grounds, 176 F.3d 500 (D.C. Cir. 1999). The plaintiffs did not pursue the illegal tax issue before the court of appeals. See Thomas v. Network Solutions, Inc., 176 F.3d 506, 506 n.8 (D.C. Cir. 1999). |
| 379. | Network Solutions, Inc., 2 F. Supp. 2d at 35-36. |
| 380. | Id. at 35. |
| 381. | Id. at 35-36 (emphasis added). |
| 382. | 686 F.2d 925 (Ct. Cl. 1982). |
| 383. | Network Solutions, Inc., 2 F. Supp. 2d at 36. |
| 384. | Commission of the European Communities, supra note 43, at 9. |
| 385. | Louis Touton, Outline of the ICANN/NSI/Department of Commerce Agreements,
Presentation to European Commission Staff, slide 13, European Internet
Forum, at http://www.ispo.cec.be/eif/InternetPoliciesSite/InternetGovernance/Presentations/EC-NSI_Agreements/
sld001.htm (Nov. 15, 1999) (on file with the Duke Law Journal). |
| 386. | See supra note 43. |
| 387. | See, e.g., NSF9224-Network Information Services Manager(s) for NSFNET and NREN, National Science Foundation, at http://www.nsf.gov/pubs/stis1992/nsf9224/nsf9224.txt (Mar. 19, 1992) (describing contract requirements designed, inter alia, to make registration simple) (on file with the Duke Law Journal). |
| 388. | See RONY & RONY, supra note 10, at 219. |
| 389. | In an earlier age, the government exercised power over large segments of the network. For example, in setting policies for the ARPANET and the NSFNet, both precursor networks, the government limited traffic to various types of noncommercial uses. See generally Brian Kahin & Bruce McConnell, Towards a Public Metanetwork: Interconnection, Leveraging, and Privatization of Government-Funded Networks in the United States, in PRIVATE NETWORKS PUBLIC OBJECTIVES (Eli M. Noam & Aine M. Nishuilleabhain eds., 1996) (comprehensively describing the government's role in the development of the Internet), available at http://www.columbia.edu/dlc/wp/citi/citi488.html (last visited Aug. 19, 2000) (on file with the Duke Law Journal). |
| 390. | Memorandum from W. Bordogna, Deputy Director (Acting), Office of the Inspector General, to the Inspector General (Apr. 17, 1997), Bureau of National Affairs, http://www.bn.acom/e-law/docs/nsfnsi.html (on file with the Duke Law Journal). |
| 391. | See Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 583 (2d Cir. 2000). |
| 392. | Pincus, supra note 43. |
| 393. | See Amendment 11, supra note 82. |
| 394. | See Memorandum of Understanding, supra note 47, at 7; Memorandum of Understanding, Amendment 1, supra note 90. |
| 395. | Thus, for example, the Registry Agreement states:
In the event that, prior to the expiration or termination of this Agreement under Section 14 or 16(B), the United States Department of Commerce withdraws its recognition of ICANN as NewCo under the Statement of Policy pursuant to the procedures set forth in Section 5 of Amendment 1 dated November 10, 1999) to the Memorandum of Understanding between ICANN and the Department of Commerce, this Agreement shall terminate.ICANN-NSI Registry Agreement, supra note 42, § 24. |
| 396. | But see supra notes 89-90 and accompanying text (noting ICANN's effort to formalize relationships with root servers and speculating about the consequences). |
| 397. | Consider, for example, ICANN's fulsome but accurate thanks to NTIA's
Becky Burr:
Along with her colleagues at the Department of Commerce, she played an essential facilitating role in not only the creation of ICANN, but also in its creation of contractual relationships with many of the important elements of the Internet community which have been and will be instrumental in its continued viability as an effective global, private sector, consensus creation body. It would not be an overstatement to conclude that, without the enormous contributions of Becky Burr, ICANN would not be here today, or at a minimum would not have made the very significant progress that is reflected at this meeting. She could not have done it alone, but we could not have done what we have done without her tireless devotion to the objective of a viable and effective ICANN.Yokohama Report, supra note 89, at 12-13. |
| 398. | See Memorandum of Understanding, supra note 47, at 7. |
| 399. | Pincus, supra note 43. |
| 400. | See id.; see also GAO Report, supra note 28, at 23 (discussing the cooperation between ICANN and DoC regarding the above-mentioned fee). |
| 401. | See, for example, DoC's statement that:
Network Solutions has indicated that it is not obligated to enter into a contract with ICANN because the Department of Commerce has not "recognized" ICANN by transferring authority over the authoritative root system to it. We find no merit in this argument. The Department of Commerce entered into a Memorandum of Understanding with ICANN on November 25, 1998. That MOU constitutes the Government's "recognition" of ICANN. We reiterated this point in a letter to Network Solutions on February 26, 1999.Pincus, supra note 43. |
| 402. | Status Report, supra note 375, § IV. |
| 403. | Id. |
| 404. | See id. |
| 405. | Id. § I. |
| 406. | See supra notes 160-62 and accompanying text. |
| 407. | See Amendment 11, supra note 82, at 8. |
| 408. | See, e.g., Order Approving Proposed Rule Change to Rescind Rules 5 and 6, the Exchange's Off-Board Trading Rules, and to Make Conforming Changes to Rules 25, 317, 900 and 959, 65 Fed. Reg. 36855 (June 12, 2000) (explaining the SEC's approval of a rule change to eliminate off-board trading restrictions); see also 15 U.S.C. § 780-3 (1994) (granting the SEC considerable discretion in its regulation of registered securities associations). |
| 409. | See supra note 398-400 and accompanying text. |
| 410. | See infra notes 675-77 and accompanying text (discussing the definition of "technical"). |
| 411. | Home Tel. & Tel. Co. v. Los Angeles, 211 U.S. 265, 273 (1908); see also Chiglades Farm, Ltd. v. Butz, 485 F.2d 1125, 1134 (5th Cir. 1973) (upholding a celery marketing order on the basis that the Secretary of Agriculture retains ultimate authority over an industry committee composed of private producers); R.H. Johnson & Co. v. SEC, 198 F.2d 690, 695 (2d Cir. 1952) (holding that the SEC did not unconstitutionally delegate powers to the National Association of Securities Dealers, because it retained power to approve or disapprove rules and to review disciplinary actions); National Park & Conservation Ass'n v. Stanton, 54 F. Supp. 2d 7, 19 (D.D.C. 1999) ("Delegations by federal agencies to private parties are, however, valid so long as the federal agency or official retains final reviewing authority."). |
| 412. | See United States v. Cherokee Nation of Okla., 480 U.S. 700, 707 (1987) (refusing to imply a waiver of sovereign authority without unmistakable evidence of an intent to surrender that authority); Bowen v. Public Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 52-53 (1986) (requiring a clear surrender of authority); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982) ("[S]overeign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign's jurisdiction, and will remain intact unless surrendered in unmistakable terms."). |
| 413. | In the case of the $1 fee, DoC, presumably having initially supported the charge, appears to have then changed its mind in the face of the Bliley committee hearing. DoC thus sent ICANN a letter outlining its concerns, and ICANN changed its policy. See Burr, supra note 284. The letter was not, however, even an informal adjudication reviewing ICANN's decision. |
| 414. | See infra notes 507-19 and accompanying text. |
| 415. | Wileman Bros. & Elliott v. Giannini, 909 F.2d 332, 338 (9th Cir. 1990). |
| 416. | 5 U.S.C. § 551(13) (1994). |
| 417. | As the Supreme Court stated in its ruling that Amtrak was subject to
the First Amendment despite a clause in its federal corporate charter stating
that it was not a government agency:
[Courts will determine what is] a Government entity for purposes of determining the constitutional rights of citizens affected by its actions. If Amtrak is, by its very nature, what the Constitution regards as the Government, congressional pronouncement that it is not such can no more relieve it of its First Amendment restrictions than a similar pronouncement could exempt the Federal Bureau of Investigation from the Fourth Amendment. The Constitution constrains governmental action "by whatever instruments or in whatever modes that action may be taken."Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (quoting Ex parte Virginia, 100 U.S. 339, 346-47 (1880)). |
| 418. | See Goss v. Lopez, 419 U.S. 565, 572 (1975) (invalidating any state action that deprives a person of a protected life, liberty, or property interest without due process of law). |
| 419. | 526 U.S. 40 (1999). |
| 420. | See id. at 46. |
| 421. | See id. at 47. |
| 422. | See id. at 48. The URO procedure in force at the time of the lawsuit provided for notice to the employee that there was a challenge, but neglected to inform him or her that it could result in suspension of medical benefits during the pendency of the proceedings. It also lacked any means by which the employee could make representations to the URO, although the employee's medical provider did get an opportunity to explain the motivation behind the proposed course of treatment. See Sullivan v. Barnett, 139 F.3d 158, 164 (3d Cir. 1998), rev'd, 526 U.S. 40 (1999). After the Third Circuit's decision, the Pennsylvania state agency that managed the process changed the procedures to require fuller disclosure and also to allow employees the option of submitting a written statement. See Sullivan, 526 U.S. at 46 n.3. |
| 423. | See Sullivan, 526 U.S. at 48-49. |
| 424. | Id. at 52 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974)). |
| 425. | Id. (quoting Jackson, 419 U.S. at 350); see also Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982) (describing a two-part "fair attribution" analysis for the requisite nexus). |
| 426. | Sullivan, 526 U.S. at 53-54. |
| 427. | See UDRP, supra note 20. |
| 428. | Cf. Sullivan, 526 U.S. at 53 (characterizing the Pennsylvania statute as a "a legislative decision not to intervene in a dispute"). |
| 429. | In fact, however, the difference with Sullivan is even sharper, because if ICANN is DoC's agent it is violating the law as well as the Constitution. DoC would not have been able to impose the UDRP directly, because Congress has enacted a flat prohibition on such mandatory arbitration schemes in connection with federal programs. See infra notes 519-22 and accompanying text. |
| 430. | Conversely, in Sullivan, the Chief Justice suggested that due to the heavily regulated nature of the URO procedure, "the decision of a URO, like that of any judicial official, may properly be considered state action." Sullivan, 526 U.S. at 54. As ICANN, acting in conformity with the policy set out in the White Paper, has written both the substantive rules applied in the UDRP, see UDRP, supra note 20, and the bulk of the procedural rules that arbitration providers must observe, see UDRP Rules, supra note 354, it follows that if ICANN is a state actor then arguably dispute providers are state actors also. For an interesting discussion of the constitutional status of alternate dispute resolution, which suggests that ADR should, at least sometimes, be seen as part of the public provision of civil justice and hence subject to some due process constraints, see generally Richard C. Reuben, Constitutional Gravity: A Unitary Theory of Alternate Dispute Resolution and Public Civil Justice, 47 UCLA L. REV. 949 (2000). |
| 431. | See Sullivan, 526 U.S. at 46 n.3. |
| 432. | See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 622 (5th Cir. 1991). A private party's conduct is government action only if it has its source in the exercise of a right or privilege having its source in state authority. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939-41 (4th Cir. 1982). |
| 433. | See Sullivan, 526 U.S. at 51 ("Our approach to this latter question begins by identifying 'the specific conduct of which the plaintiff complains.'") (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). |
| 434. | See Edmonson, 500 U.S. at 621. |
| 435. | Id. |
| 436. | Id. at 621 (citing Tulsa Prof. Collection Servs., Inc. v. Pope, 485 U.S. 478 (1988); Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)). |
| 437. | Id. (citing Terry v. Adams, 345 U.S. 461 (1953); Marsh v. Alabama, 326 U.S. 501 (1946); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 544-45 (1987)). |
| 438. | Id. at 622 (citing Shelley v. Kraemer, 334 U.S. 1 (1948)). For a discussion of these factors, see G. Sidney Buchanan, A Conceptual History of the State Action Doctrine: The Search for Governmental Responsibility (pt. 2), 34 HOUS. L. REV. 665, 728-33, 756-64 (1997). |
| 439. | 419 U.S. 345 (1974). |
| 440. | Thomas v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C. Cir. 1999). But see National A-1 Adver., Inc. v. Network Solutions, Inc., Civ. No. 99-0033-M, slip. op. at 28-30 (D.N.H. Sept. 28, 2000) (suggesting that domain name registrar services might be "traditional" government services, despite the argument advanced in Thomas). |
| 441. | See supra note 106 and accompanying text. |
| 442. | See supra notes 115-17 and accompanying text. |
| 443. | Internet years are commonly said to be like "dog years"-moving seven
times as fast as human years. See, e.g., Hal R. Varian, Economic
Issues Facing the Internet, School of Information Management and Systems,
at http://www.sims.berkeley.edu/~hal/Papers/econ-issues-internet.html
(Sept. 15, 1996) (on file with the Duke Law Journal).
The DNS is certainly unlike "traditional government functions," such as elections, that are reserved to the state by statute; if that element of legal compulsion is required for state action as suggested by Flagg Brothers and other cases prior to Lebron v. National Railroad Passenger Corp., see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156-60 (1978) (stating that "very few" state functions are traditionally exclusively reserved to the state, such as elections and municipal functions); see also Terry v. Adams, 345 U.S. 461, 469-70 (1953) (holding that a "white primary" held before a county election deprived minorities of the right to vote); Marsh v. Alabama, 326 U.S. 501, 507-08 (1946) (holding that a "company town" may not violate constitutional guarantees by claiming that it is not a state actor), then ICANN may not be a state actor. However, in Edmonson, the "Court has liberated itself from the bondage of the exclusivity test" applied in those earlier cases. Buchanan, supra note 438, at 760. |
| 444. | 513 U.S. 374 (1995). |
| 445. | 483 U.S. 522 (1987). |
| 446. | Lebron, 513 U.S. at 385 (quoting 45 U.S.C. § 541, recodified at 49 U.S.C. § 24301 (1994)). |
| 447. | Id. at 397. |
| 448. | A subsidy alone does not suffice to make a private party a government actor. See San Francisco Arts & Athletics, 483 U.S. at 544. |
| 449. | See id. at 543-44. In reaching the no-control finding, the Court quoted a district court's finding with approval, finding that there was no control based on the USOC's charter and the absence of any evidence of de facto control. See id. at 544 n.27 (quoting DeFrantz v. United States Olympic Comm., 492 F. Supp. 1181, 1194 (D.D.C.), aff'd, 701 F.2d 221 (D.C. Cir. 1980)). |
| 450. | Id. at 544 (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)). Justice Brennan's dissent argued the USOC, in fact, did a traditionally governmental job-that of representing the United States to the outside world. See id. at 550 (Brennan, J., dissenting). |
| 451. | See id. at 545. |
| 452. | See supra Part II.A.5. |
| 453. | For a discussion of the similarities between the two doctrines, see Alan E. Brownstein, Prayer and Religious Expression at High School Graduations: Constitutional Etiquette in a Pluralistic Society, NEXUS: A JOURNAL OF OPINION (forthcoming Spring 2000) (on file with the Duke Law Journal). |
| 454. | See Kathryn R. Williams, Recent Decision: Constitutional Law-Squeezing Lemon-Capitol Square Review & Advisory Board v. Pinette, 115 S. Ct. 2440 (1995), 69 TEMP. L. REV. 1609, 1614-15 (1996). |
| 455. | 120 S. Ct. 2266 (2000). |
| 456. | See id. at 2275. The Court contrasted a forum that is open to all with one where a single student is allowed to give invocations for the entire season. See id. at 2276. |
| 457. | Id. at 2275. |
| 458. | Id. at 2276 (quoting West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)). |
| 459. | Id. |
| 460. | The Court seemed to believe that the school district used the election process as a sham to avoid earlier court decisions. See id. at 2282 ("We refuse to turn a blind eye to the context in which this policy arose . . . ."). |
| 461. | See supra notes 218-22 and accompanying text. And, if there had been any doubt initially of the balance of power, there certainly can have been no doubt when the time came for DoC to decide whether to renew ICANN's hold on the root. See supra note 47. |
| 462. | 488 U.S. 179 (1988). |
| 463. | Id. at 179 (citations omitted). But see San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 543-45 (1987) (holding that neither the U.S. Olympic Committee's federal charter nor the fact that it represented the United States in international athletic competitions made it a state actor). |
| 464. | See supra Part II.B.5. |
| 465. | See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 842-43 (1982) (finding no "symbiotic relationship" as related to employment decisions in the typical government contractor relationship, even when the contractor is highly regulated). |
| 466. | See Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961). |
| 467. | See J.K. v. Dillenberg, 836 F. Supp. 694, 698 (D. Ariz. 1993). |
| 468. | The Second Circuit recently held that NSI was "entitled to implied conduct-based immunity with respect to its refusal to add new gTLDs to the root zone file" because its refusal to add new TLDs was "compelled by the explicit terms of NSI's agreement with a government agency and by the government's policies regarding the proper administration of the DNS." Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 582 (2d Cir. 2000). |
| 469. | There are limits to NSI's duty to obey. See supra note 42 and accompanying text. |
| 470. | For example, in Wheeling-Pittsburgh Steel Corp. v. Allied Tube &
Conduit Corp., 573 F. Supp. 833 (N.D. Ill. 1983), the court held that
the National Fire Protection Association (NFPA) and Underwriters Laboratories
(UL) were not private bodies but were governmental entities for Noerr-Pennington
purposes, because the
wholehearted reliance upon the NFPA and UL by these governmental entities [had] resulted in a near complete delegation of governmental authority to these otherwise private entities. While the governmental bodies of course have retained the power to modify or reject the NFPA and UL recommendations, in practice they have relied completely on them.Id. at 838. |
| 471. | See UDRP, supra note 20, § II.C.2.B. |
| 472. | Or, for this purpose, DoC subjects the decisions to minimal review of the rubber-stamp variety. |
| 473. | 5 U.S.C. § 704 (1994). |
| 474. | See id. §§ 551-57. |
| 475. | Id. § 551(4); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 209 (1988) (holding that rulemaking, unlike adjudication, must be prospective rather then retrospective in the absence of clear congressional authorization to the contrary). |
| 476. | See 5 U.S.C. § 553; Chrysler Corp. v. Brown, 441 U.S. 281, 302-03, 315 (1979) (holding that only rules promulgated pursuant to congressionally granted quasi-legislative authority and in accordance with procedural requirements imposed by Congress have the force of law); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 417 (1971) (holding that an agency must make a record consisting of formal findings when necessary to facilitate a full and prompt review of the agency's action); Professional Pilots Fed'n v. FAA, 118 F.3d 758, 763 (D.C. Cir. 1997) (holding that an opportunity to comment is meaningless unless the agency responds to significant points raised by the public); Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C. Cir. 1977) (same); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 393-94 (D.C. Cir. 1973) (same); cf. Anthony, supra note 187, at 1322-23 (enumerating six requirements for a valid legislative rule, chief of which is notice and comment). |
| 477. | 5 U.S.C. § 553(a)(2). The agency must possess statutory authority to make the rules and intend by making the rule to use its authority. See Anthony, supra note 187, at 1322 (arguing that when agencies attempt to bind the public with nonlegislative documents, those agencies violate the APA). |
| 478. | See supra notes 82-84 and accompanying text. |
| 479. | See 5 U.S.C. § 706(2)(A) (1994). |
| 480. | See, e.g., American Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) ("In light of the obvious importance of these policy goals of maximum participation and full information, we have consistently declined to allow the exceptions itemized in § 553 to swallow the APA's well-intentioned directive."); Rainbow Valley Citrus Corp. v. Federal Crop Ins. Corp., 506 F.2d 467, 469 (9th Cir. 1974) (noting that the public contracts exception exists because it would be unreasonable to require agencies to publish Federal Register notices and hold hearings every time they entered into, rescinded, or cancelled a government contract). But see National Wildlife Fed'n v. Snow, 561 F.2d 227, 231-32 (D.C. Cir. 1976) (suggesting a broad reach for exceptions). See generally Construction and Application of 5 USCS § 553(a)(2), Exempting from Administrative Procedure Act's Rulemaking Requirements Matters Relating to Agency Management or Personnel or to Public Property, Loans, Grants, Benefits or Contracts, 41 A.L.R. FED. 926 (1979 & Supp. 1999) (collecting cases construing the contracts exception). |
| 481. | S. REP. NO. 79-752, at 13 (1945). |
| 482. | Note that a MoU between two agencies clearly does fall under the "procedural" exception to section 553. See, e.g., Emerson Elec. Co. v. Schlesinger, 609 F.2d 898, 904 (8th Cir. 1979) (excepting certain agencies from the notice and comment provisions of section 553). |
| 483. | On the other hand, the CRADA, see supra note 47,
may be: it certainly is not the case that agencies must comply with section
553 before entering into a CRADA. See Kurt M. Rylander, Scanwell
Plus: Challenging the Propriety of a Federal Agency's Decision to Use a
Federal Grant and Cooperative Agreement, 28 PUB. CONST. L.J. 69, 73
(1998):
[W]hile the administration and performance of contracts for property and services are subject to the FAR and its supplements, and to the claim and appeal procedures of the Contract Disputes Act (CDA) [41 U.S.C. §§ 601-13], federal grants and cooperative agreements are subject only to informal OMB advisories and agency regulations. Further, because the CDA is inapplicable to grants and cooperative agreements, no claim or appeal rights exist for termination, breach, or other claim events related to the performance of a grant or cooperative agreement. Thus, the classification of a government agreement as either a grant or cooperative agreement on the one hand or a contract for property or services on the other plays a significant role in the definition of contractor rights and government obligations. |
| 484. | See GAO Report, supra note 28, at 9-12. |
| 485. | If the data is property, it is intangible property; it cannot be trademarked or patented; it is public, so it is not a trade secret, leaving copyright, which the government does not have in its published work. See supra notes 83-84 and accompanying text (discussing whether the root is government property). |
| 486. | See supra notes 170-72 and accompanying text. |
| 487. | See supra notes 185-88 and accompanying text. |
| 488. | See Susan L. Chapin, Comment, If You Build It They Will Come: Concession Reform in the National Parks, 33 LAND & WATER L. REV. 33, 54 (1998). But see generally Wilderness Pub. Rights Fund v. Kleppe, 608 F.2d 1250 (9th Cir. 1979) (holding that the Secretary of the Interior's 1972 freezing and apportioning of use of the Colorado River was excepted from section 553). |
| 489. | The GAO's report examined DoC's authority to create ICANN and opined that the authority existed. GAO did not comment on the reasonableness of DoC's exercise of this authority, nor on the ability of third parties to challenge the exercise of that authority. See GAO Report, supra note 28, at 2 (stating the questions it addressed). Presumably, however, if the GAO thought that DoC's actions were unreasonable it would have said so. |
| 490. | See supra note 82. |
| 491. | See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Animal Legal Defense Fund v. Glickman, 154 F.3d 426, 431 (D.C. Cir. 1998) (defining the standing test). |
| 492. | See National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 491 (1998) (holding that standing is precluded only "if the plaintiff's interests are . . . marginally related to or inconsistent with the purposes implicit in the statute") (quoting Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399 (1987)); see also Association of Data Processing Serv. Org. v. Camp, 397 U.S. 150, 153 (1970) (holding that there is standing when "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question"). |
| 493. | National Credit Union, 522 U.S. at 492 (quoting Clarke, 479 U.S. at 399-400). |
| 494. | Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1075 (D.C. Cir. 1998). |
| 495. | 12 F.3d 1256, 1265 (3d Cir. 1993). |
| 496. | Id. |
| 497. | Id. at 1267. |
| 498. | See id. at 1267-68. |
| 499. | Id. at 1269 (Stapelton, J., concurring and dissenting). |
| 500. | See id. (Stapleton, J., concurring and dissenting). |
| 501. | 42 F. Supp. 2d 1 (D.D.C. 1999). |
| 502. | Id. at 13. |
| 503. | Id. at 15 ("The defendants have not argued that the Yellowstone-Diversa CRADA does not constitute final agency action reviewable under the APA, nor could they."). |
| 504. | Id. at 15 (citing Administrative Procedure Act, § 1, 5 U.S.C. §§ 702, 706 (1994)). |
| 505. | 15 U.S.C. §§ 3701-17 (1994). |
| 506. | Edmonds Institute, 42 F. Supp. at 14. |
| 507. | Assuming, of course, that the APA section 553 exceptions do not apply. See supra Part III.C.1. |
| 508. | See 5 U.S.C. § 706(2)(D) (1994). |
| 509. | See id. § 552(2). |
| 510. | Rules are ordinarily subject to review under the "arbitrary, capricious" standard. 5 U.S.C. § 706(2)(A). |
| 511. | For application forms and instructions, see TLD Application Process: Information for Applicants, at http://www.icann.org/tlds/tld-application-process.htm (last modified Aug. 15, 2000) (on file with the Duke Law Journal). |
| 512. | In SEC v. Chenery Corp., 332 U.S. 194 (1947) (Chenery II), the Supreme Court held that agencies empowered to act by both rule and adjudication may choose either. See id. at 203. It reaffirmed that view in NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974). See generally Russell L. Weaver, Chenery II: A Forty-year Retrospective, 40 ADMIN. L. REV. 161, 163-73 (1988), for a discussion of lingering uncertainties about the exact extent of agencies' power to make rules via adjudication. |
| 513. | Even a survey of legislative delegations offered as part of an argument that the executive's powers were being eroded and shared with outsiders found no delegations to private groups, other than in highly technical matters, that lacked review by a federal official before the rules went into effect. See Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 NW. U. L. REV. 62, 86-90, 95-101 (1990). The one potentially significant counter-example cited by Professor Krent, that of the Metropolitan Washington Airports Act of 1986, see id. at 89-90, was subsequently declared unconstitutional. See Metropolitan Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 255 (1991). |
| 514. | See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S.
441, 445 (1915). The Due Process Clause provides far less protection to
persons subject to agency proceedings in the nature of a rulemaking (prospective,
general) than it does to persons subject to agency proceedings in the nature
of an adjudication (targeted, personal, and with some element of retrospectivity).
Compare id., with Londoner v. Denver, 210 U.S. 373,
385-86 (1908):
[D]ue process of law requires that at some stage of the proceedings before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place of the hearing. |
| 515. | See Action for Children's Television v. FCC, 564 F.2d 458, 477 (D.C. Cir. 1977) (holding that ex parte contacts are prohibited when an agency is deciding "competing claims to a valuable privilege" because "at that point . . . the potential for unfair advantage outweighs the practical burdens . . . that such a judicially conceived rule would place upon administrators"). |
| 516. | See Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d
332, 337-38 (9th Cir. 1990):
The mere fact of [the agency's] failure to disapprove, however, does not legitimize otherwise anticompetitive conduct. . . . [T]here is no affirmative process of non-disapproval which can be relied upon fairly to evaluate a committee's regulations. . . . [N]on-disapproval is equally consistent with lack of knowledge or neglect as it is with assent. |
| 517. | 401 U.S. 402, 420 (1971) (holding-in the context of review of agency adjudication-that courts require an administrative record in order to determine the propriety of an agency's action). |
| 518. | Cf. Action Alliance v. Heckler, 789 F.2d 931, 937 (D.C. Cir. 1986) (holding that a private interest group had standing to challenge an agency's decision not to issue findings because of the resultant injury to the group's function of informing the public); National Park & Conservation Ass'n v. Stanton, 54 F. Supp. 2d 7, 13 (D.D.C. 1999) (recognizing the "informational injury" of having a matter privatized so as to not be subject to the APA). |
| 519. | 5 U.S.C. §§ 571-83 (1994). On the ADRA, see generally Cynthia B. Dauber, The Ties That Do Not Bind: Nonbinding Arbitration in Federal Administrative Agencies, 9 ADMIN. L.J. AM. U. 165 (1995). |
| 520. | 5 U.S.C. § 572(a). |
| 521. | An "issue in controversy" is defined as "an issue which is material to a decision concerning an administrative program of an agency, and with which there is disagreement" either "between an agency and persons who would be substantially affected by the decision" or "between persons who would be substantially affected by the decision." Id. §§ 571(8)(A)-(B); cf. In re Grand Jury Subpoena Dated December 17, 1996, 148 F.3d 487, 491 (5th Cir. 1998). |
| 522. | 5 U.S.C. § 575(a)(3). |
| 523. | 5 U.S.C. § 571(8)(B). |
| 524. | Id. § 571(2). |
| 525. | See Ward v. Monroeville, 409 U.S. 57, 60 (1972); Tumey v. Ohio, 273 U.S. 510, 523 (1927). |
| 526. | See supra notes 351-54 and accompanying text. |
| 527. | See, e.g., Brian Livingston, Groups Cite Bias in Domain Name Arbitration, CNET NEWS (July 7, 2000), at http://www.news.com/Perspectives/Column/0,176,459,00.html (on file with the Duke Law Journal). |
| 528. | A mere likelihood of bias, without actual bias, may not violate due process. See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820-21 (1986). |
| 529. | See supra note 356 and accompanying text. |
| 530. | On e-mail service, see generally Rachel Cantor, Comment, Internet Service of Process: A Constitutionally Adequate Alternative?, 66 U. CHI. L. REV. 943 (1999) (arguing that Internet service is often constitutionally adequate and that rules governing service should permit Internet service); Frank Conley, Comment, :-) Service with a Smiley: The Effect of E-mail and Other Electronic Communications on Service of Process, 11 TEMP. INT'L & COMP. L.J. 407 (1997) (arguing that e-mail is an efficient means to serve process). |
| 531. | See supra notes 357-64 and accompanying text. |
| 532. | See supra note 356 and accompanying text. |
| 533. | In contrast, the Federal Rules of Civil Procedure allow a defendant 20 days to answer, starting from the date of actual service of a complaint, see FED. R. CIV. P. 12(a)(1)(A); but if the defendant waives formal service, accepting mail service, for example, she has 60 days to answer. See FED. R. CIV. P. 4(d). Defendants outside the United States get 90 days. See id. A mailed request for waiver under Rule 4(d) not only includes a copy of the complaint but also a prepaid means for compliance, and it allows at least 30 days for the waiver to be returned. See id. What is more, extensions for good cause are not unusual. |
| 534. | See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). |
| 535. | Presumably, the complainant can be sued where he resides. In addition, complainants must agree to the jurisdiction of a court either where the complainant resides, or where the registrar is located. See UDRP, supra note 20, § 3(b)(xiii). |
| 536. | See Froomkin, A Commentary on WIPO's Management, supra note 13. |
| 537. | An "advisory committee" is "utilized" whenever the President or a federal
official turns to
a committee or other group composed in whole or in part of other than full-time officers or employees of the Federal Government with an established existence outside the agency seeking its advice which the President or agency official(s) adopts, such as through institutional arrangements, as a preferred source from which to obtain advice or recommendations on a specific issue or policy within the scope of his or her responsibilities in the same manner as that individual would obtain advice or recommendations from an established advisory committee.41 C.F.R. § 101-6.1003 (1999). This sounds suspiciously like ICANN. |
| 538. | The Federal Advisory Committee Act, 5 U.S.C. app. 2 § 9 (1994), sets out prerequisites for the establishment of advisory committees, including a formal finding by an agency head or the President that the committee is needed, and publication of a detailed statement of purpose and modes of function in the Federal Register. |
| 539. | FACA states that "[e]ach advisory committee meeting shall be open to the public," and that "timely notice of each such meeting shall be published in the Federal Register, and the Administrator shall prescribe regulations to provide for other types of public notice to insure that all interested persons are notified of such meeting prior thereto." It also requires public access to detailed minutes. Id. §§ 10(a)(1)-(2). |
| 540. | See id. §§ 10(e)-(f). |
| 541. | ICANN's bylaws do not allow government officials to sit on the board of directors. See ICANN Amended Bylaws, art. V, § 5, at http://www.icann.org/general/bylaws.htm (July 16, 2000) (on file with the Duke Law Journal). Governments, however, do have a special advisory role reserved for them. ICANN's Governmental Advisory Committee has a right to be consulted regarding any policy that will substantially affect the operation of the Internet or third parties. See id. art. VII, § 3 (referencing art. III, § 3). |
| 542. | 5 U.S.C. app. 2 § 3(2) (1994). |
| 543. | GSA regulations exclude from FACA coverage "[a]ny committee which is established to perform primarily operational as opposed to advisory functions. Operational functions are those specifically provided by law, such as making or implementing Government decisions or policy. An operational committee may be covered by the Act if it becomes primarily advisory in nature." 41 C.F.R. § 101-6.1004(g) (1999). |
| 544. | See supra note 537. Under this definition, if DNS management and policy is currently a DoC responsibility, which it undeniably is, and if DoC has an "institutional arrangement" to use ICANN as a "preferred source" for advice or recommendations-which is a gentle way of describing the current relationship-then FACA should apply to ICANN. |
| 545. | 491 U.S. 440 (1989). |
| 546. | Id. at 452. Justice Kennedy's concurrence shears the wool off
of the term "utilize," opting to adopt the plain meaning of the word for
the purposes of legislative interpretation:
We are told that "utilize" is "a woolly verb," and therefore we cannot be content to rely on what is described, with varying levels of animus, as a "literal reading," a "literalistic reading," and "a dictionary reading" of this word. . . . Reluctance to working with the basic meaning of words in a normal manner undermines the legal process. These cases demonstrate that reluctance of this sort leads instead to woolly judicial construction that mars the plain face of legislative enactments.Id. at 469 (Kennedy, J., concurring). |
| 547. | Id. at 442. |
| 548. | See supra Part II.A.5. |
| 549. | 900 F.2d 328 (D.C. Cir. 1990). |
| 550. | Id. at 331 (citing H.R. CONF. REP. NO. 92-1403, at 2 (1972), reprinted in 1972 U.S.C.C.A.N. 3508, 3509; H.R. REP. NO. 92-1017, at 4 (1972), reprinted in 1972 U.S.C.C.A.N. 3491, 3494 (stating that "advisory committee" does not include a contractor or consultant hired by an officer or agency of the federal government)); see also Tucson Rod & Gun Club v. McGee, 25 F. Supp. 2d 1025, 1030 (D. Ariz. 1998) (citing the same House Reports as above to conclude that "the Court finds that this count should be dismissed . . . because FACA does not apply to government contractors"). |
| 551. | See id. |
| 552. | Id. (quoting Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 463 (1989)). |
| 553. | Sofamor Danek Group, Inc. v. Gaus, 61 F.3d 929, 936 (D.C. Cir. 1995). |
| 554. | See supra note 86 and accompanying text. |
| 555. | See Cukier, supra note 173 (outlining Postel's test and the response to the test by the other root servers). |
| 556. | See, e.g., Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 447-48 (1987) (noting the frequent criticism that administrative agencies are insufficiently accountable to the electorate); Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 60 (1985) ("[A]dministrative agencies exercise broad discretionary power with only intermittent control from the electorally accountable branches of the federal government. The danger is that private groups will co-opt the administrative process and exploit it to their advantage."). |
| 557. | See National Park & Conservation Ass'n v. Stanton, 54 F. Supp. 2d 7, 14-15 (D.D.C. 1999) (holding that the plaintiffs stated a claim for unlawful subdelegation of statutory duty to a private group); Michael Ezra Fine, Rethinking the Nondelegation Doctrine, 62 B.U. L. REV. 257, 266 (1982) ("Congress may delegate 'administrative' power-the power to implement 'legislative' power. The nondelegation doctrine only requires that the legislature exercise its legislative power, and that the legislature control administrative power exercised by an agency."). |
| 558. | See GAO Report, supra note 28, at 26 & n.41 ("Since it is a role not specifically required by statute, the Department was not delegating or transferring a statutory duty when it proposed to transition administrative control over the domain name system to a private entity."). |
| 559. | See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936); cf. Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 457 (Tex. 1997) (relying on the Texas Constitution to reach a similar result). |
| 560. | 298 U.S. 238 (1936). |
| 561. | 295 U.S. 495 (1935). |
| 562. | There are several early cases discussing the doctrine. See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 408 (1928) ("The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no objection can be made."); Field v. Clark, 143 U.S. 649, 692 (1892) ("That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution."); The Aurora, 11 U.S. (7 Cranch) 382 passim (1813) (upholding a delegation to the President to determine "contingency"). |
| 563. | See Schechter Poultry, 295 U.S. at 529-30 (addressing the question of whether Congress had established standards of legal obligation by enacting "codes of fair competition," thereby fulfilling its essential legislative function, or, by failing to enact such standards, had delegated this function to others). |
| 564. | See American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir.), modified in part and reh'g en banc denied, 195 F.3d 4 (D.C. Cir. 1999), cert. granted sub nom. Browner v. American Trucking Ass'ns, Inc., 120 S. Ct. 2003 (2000), and cert. granted sub nom. American Trucking Ass'ns, Inc. v. Browner, 120 S. Ct. 2193 (2000); see also Lisa Schultz Bressman, Essay, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 YALE L.J. 1399, 1415 (2000) ("The newly emerging delegation doctrine requires administrative agencies to issue rules containing reasonable limits on their discretion in exchange for broad grants of regulatory authority."). But see Cass Sunstein, Is the Clean Air Act Unconstitutional?, 98 MICH. L. REV. 303, 380 (1999) ("The new nondelegation doctrine is a large mistake."); Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 316 (2000) (maintaining that the courts do not apply a single nondelegation doctrine, but rather a series of more specific variants); Mark Seidenfeld & Jim Rossi, The False Promise of the "New" Nondelegation Doctrine (Mar. 30, 2000) (maintaining that the doctrine hinders the rule of law), Social Science Research Network Electronic Library, http://papers.ssrn.com/paper.taf?abstract_id=214508 (on file with the Duke Law Journal). |
| 565. | See Schechter Poultry, 295 U.S. at 530 ("[W]e look to the statute to see whether Congress . . . in authorizing 'codes of fair competition' has itself established the standards of legal obligation, thus performing its essential legislative function, or, by the failure to enact such standards, has attempted to transfer that function to others."); Panama Ref. Co. v. Ryan, 293 U.S. 388, 415 (1935) ("[T]he question whether that transportation shall be prohibited by law is obviously one of legislative policy. Accordingly, we look to the statute to see whether the Congress has . . . set up a standard for the President's action."); J.W. Hampton, Jr. & Co., 276 U.S. at 409 ("If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power."); Field, 143 U.S. at 692-93 ("Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the President was required to do was simply in execution of the act of Congress."). |
| 566. | See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 618 (1984). |
| 567. | See Metropolitan Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991) ("If the power is executive, the Constitution does not permit an agent of Congress to exercise it."); Bowsher v. Synar, 478 U.S. 714, 726 (1986) (holding unconstitutional a statute vesting executive budget powers in an officer removable by Congress); INS v. Chadha, 462 U.S. 919, 952-59 (1983) (holding that the only means by which Congress may alter "the legal rights, duties and relations of persons" outside the legislative branch is by legislation and presentment to President). There are also a number of so-called "independent agencies," whose officers have some degree of insulation from removal without cause, although exactly how much is debated. Despite their name, however, independent agencies are part of the executive branch. Compare Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1155, 1191 (1992) (comparing the Vesting Clauses in Article II and Article III of the Constitution and observing that the Article II Clause creates a unitary executive), with A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 NW. U. L. REV. 1346, 1372 (1994) (arguing that the text and structure of the Constitution allow Congress to insulate some inferior officers from the removal power of the President). |
| 568. | See 5 U.S.C. § 706(2)(C) (1994) (making agency action "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" unlawful); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("It is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress."). |
| 569. | See United States v. Robel, 389 U.S. 258, 276 (1967) (Brennan, J., concurring); Arizona v. California, 373 U.S. 546, 626 (1963) (Harlan, J., dissenting in part). |
| 570. | See Arizona, 373 U.S. at 626 (Harlan, J., dissenting in part):
[The nondelegation doctrine] insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people [and] prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.See also National Ass'n of Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095, 1143 n.41 (D.C. Cir. 1984) ("[O]ne of the rationales against excessive delegation [is] the harm done thereby to principles of political accountability. Such harm is doubled in degree in the context of a transfer of authority from Congress to an agency and then from agency to private individuals."); Henry H. Perritt, Jr., International Administrative Law for the Internet: Mechanisms of Accountability, 51 ADMIN. L. REV. 871, 896-97 (1999) ("The core value embedded in the Delegation Doctrine is political accountability. Rules should be made only by those who are accountable to the people, and, equally important, rules that engender sufficient public opposition should be amenable to change."); David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223, 1224 (1985) ("Unchecked delegation would undercut the legislature's accountability to the electorate and subject people to rule through ad hoc commands rather than democratically considered general laws."); David N. Wecht, Note, Breaking the Code of Deference: Judicial Review of Private Prisons, 96 YALE L.J. 815, 834 (1987) ("Privatization without retention of adequate control is inconsistent with the Court's own jurisprudence . . . ."). |
| 571. | 226 U.S. 137 (1912). |
| 572. | Id. at 143-44. |
| 573. | 278 U.S. 116 (1928). |
| 574. | Id. at 121-22. |
| 575. | Id. |
| 576. | 426 U.S. 668 (1976). |
| 577. See id. at 677-78. | |
| 578. | Id. at 672. |
| 579. | In Schechter Poultry, the poultry corporation challenged rules, devised by the Secretary of Agriculture and the Administrator for Industrial Recovery, regulating wages, hours, and the methods by which poultry buyers would select chickens, and also challenged an administrative system able to modify and enforce these rules. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 527-28 (1935). |
| 580. | Id. at 524. |
| 581. | Id. at 522-23 (quoting the National Industrial Recovery Act § 3, 48 Stat. 195, 196 (1933)). |
| 582. | Id. at 523. |
| 583. | 293 U.S. 388 (1935). |
| 584. | Schechter Poultry, 295 U.S. at 542. |
| 585. | Id. at 537. |
| 586. | See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936). |
| 587. | See Bituminous Coal Conservation Act of 1935, ch. 824, § 5(d), 49 Stat. 991, 1002-03 (authorizing treble damages), repealed by Act of Apr. 26, 1937, ch. 127, 50 Stat. 90. Another difference of some significance was that the Bituminous Coal Conservation Act created a direct right of action for persons aggrieved by the code. See Carter Coal, 298 U.S. at 340 n.7. No such right exists for persons aggrieved by ICANN's actions. |
| 588. | See Bituminous Coal Conservation Act of 1935, § 4. |
| 589. | See id. § 1. |
| 590. | Carter Coal, 298 U.S. at 311. |
| 591. | See Bituminous Coal Conservation Act of 1935, § 1; see also Carter Coal, 298 U.S. at 288-89 ("The exaction applies to all bituminous coal produced, whether it be sold, transported or consumed in interstate commerce, or transactions in respect of it be confined wholly to the limits of the state."). |
| 592. | See Carter Coal, 298 U.S. at 310. |
| 593. | Id. at 289. |
| 594. | Id. at 311. |
| 595. | Id. |
| 596. | See id. at 318 (Hughes, C.J., concurring). |
| 597. | See id. at 333 (Cardozo, J., dissenting). |
| 598. | For a review of nondelegation decisions, see DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 25-46 (1993). |
| 599. | See infra notes 634-49 and accompanying text. |
| 600. | 321 U.S. 414, 423 (1944) ("The Act is thus an exercise by Congress of its legislative power. In it Congress has stated the legislative objective, has prescribed the method of achieving that objective . . . and has laid down standards to guide the administrative determination . . . ."). |
| 601. | 332 U.S. 245, 249-56 (1947) (upholding a sweeping delegation to banking regulators). |
| 602. | 337 F. Supp. 737, 747 (D.D.C. 1971) ("[W]e cannot say that in the Act before us there is such an absence of standards that it would be impossible to ascertain whether the will of Congress has been obeyed."). |
| 603. | Federal Power Comm'n v. New England Power Co., 415 U.S. 345, 352-53 (1974) (Marshall, J., concurring). |
| 604. | See, e.g., Mistretta v. United States, 488 U.S. 361, 373-74 (1989) (finding Congress's delegation of authority to a sentencing commission sufficiently specific to survive a nondelegation challenge); Kent v. Dulles, 357 U.S. 116, 129-30 (1958) (construing narrowly a statute delegating power to the executive regarding the issuance of passports). See generally Cass Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2110-12 (1990) (discussing the need for clear legislative statements when delegating authority to administrative agencies). |
| 605. | See Richard J. Pierce, Jr., The Inherent Limits on Judicial Control of Agency Discretion: The D.C. Circuit and the Nondelegation Doctrine, 52 ADMIN. L. REV. 63, 63-64 (2000) (describing how the American Trucking decision "shocked the world of administrative law"). |
| 606. | See American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir.), modified in part and reh'g en banc denied, 195 F.3d 4 (D.C. Cir. 1999), cert. granted sub nom. Browner v. American Trucking Ass'ns, Inc., 120 S. Ct. 2003 (2000), and cert. granted sub nom. American Trucking Ass'ns, Inc. v. Browner, 120 S. Ct. 2193 (2000). |
| 607. | See Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 686-87 (1980) (Rehnquist, J., concurring). |
| 608. | See Peretz v. United States, 501 U.S. 923, 956 (1991) (Scalia, J., dissenting). |
| 609. | On the place of Carter Coal in the controversy, see Michael Ariens, A Thrice-told Tale, or Felix the Cat, 107 HARV. L. REV. 620, 626-27 (1994). |
| 610. | 306 U.S. 1 (1939). |
| 611. | See id. at 6. |
| 612. | Id. at 15. |
| 613. | Id. at 15-16 (citations omitted). In United States v. Rock Royal Coop., 307 U.S. 533, 547 (1939), the Court rejected a challenge to a statute allowing the Secretary of Agriculture to fix prices for milk, after a two-thirds vote of producers. The two-thirds could be measured by numbers of producers or by volume of milk produced. See id. at 547-48. Citing Currin, the Supreme Court held that since Congress could have implemented the rule directly, and the rule was very specific, "it is permissible for [Congress] to provide for approval or disapproval in such way or manner as it may choose." Id. at 578. |
| 614. | The leading articles documenting this trend are Freeman, supra note 29; David M. Lawrence, Private Exercise of Governmental Power, 61 IND. L.J. 647, 689-94 (1986) (describing the extent of delegation to private parties); and Liebmann, supra note 339, at 717-18 (concluding that there is a wide scope of such delegation). |
| 615. | See generally Abramson, supra note 338; Liebmann, supra note 339. |
| 616. | See, e.g., 20 U.S.C. §§ 403(b)(5) (codifying the National Defense Education Act of 1958), 751(f)(5) (providing grants and loans for construction of academic facilities) (1994). |
| 617. | See Marjorie Webster Jr. College, Inc. v. Middle States Ass'n of Colleges & Secondary Sch., Inc., 432 F.2d 650, 658 (D.C. Cir. 1970). |
| 618. | See 15 U.S.C. §§ 78-83 (1994); Liebmann, supra note 339, at 701. |
| 619. | See LOUIS L. JAFFE, ADMINISTRATIVE LAW, CASES AND MATERIALS 49 (1953) (querying whether the nondelegation doctrine is good law); Abramson, supra note 338, at 193 (arguing that the Court abandoned the private nondelegation doctrine after Carter Coal); Lawrence, supra note 613, at 672 (same); cf. JOHN HART ELY, DEMOCRACY AND DISTRUST 133 (1980) (noting that the decline of the nondelegation doctrine is "a case of death by association" with unpopular positions). |
| 620. | The Supreme Court's grant of certiorari in American Trucking, however, potentially puts all the nondelegation issues related to agencies' rulemaking powers back on the table-for the first time since the New Deal. See American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1033 (D.C. Cir.), modified in part and reh'g en banc denied, 195 F.3d 4 (D.C. Cir. 1999), cert. granted sub nom. Browner v. American Trucking Ass'ns, Inc., 120 S. Ct. 2003 (2000), and cert. granted sub nom. American Trucking Ass'ns, Inc. v. Browner, 120 S. Ct. 2193 (2000). |
| 621. | See Lawrence, supra note 614, at 659. |
| 622. | 153 U.S. 525 (1894). |
| 623. | Id. at 529-30. The corporation's charter required that it pay "proper compensation . . . ascertained according to the laws of the State" within which the property taken was located. Id. at 527 n.1. |
| 624. | See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936). |
| 625. | Id. |
| 626. | Delegations of administrative authority are suspect when they are made to private parties, particularly to entities whose objectivity may be questioned on grounds of conflict of interest. See, e.g., Carter Coal, 298 U.S. at 311 (holding that a statute that empowers large coal producers and miners to set maximum hours and minimum wages for themselves and for small coal producers and miners "is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question"); Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 122 (1928) (stating that the legislature may not hand de facto control over the regulatory process to private parties, "uncontrolled by any standard or rule," who are "not bound by any official duty, but are free to withhold consent for selfish reasons or arbitrarily"); General Elec. Co. v. New York State Dep't of Labor, 936 F.2d 1448, 1455 (2d Cir. 1991) ("[A] legislative body may not constitutionally delegate to private parties the power to determine the nature of rights to property in which other individuals have a property interest, without supplying standards to guide the private parties' discretion."); Sierra Club v. Sigler, 695 F.2d 957, 963 n.3 (5th Cir. 1983) ("[A]n agency may not delegate its public duties to private entities, particularly private entities whose objectivity may be questioned on grounds of conflict of interest."); Schulz v. Milne, 849 F. Supp. 708, 712 (N.D. Cal. 1994) ("[T]he state may not constitutionally abdicate or surrender its power to regulate land-use to private individuals without supplying standards to govern the use of private discretion."); Texas Boll Weevil Eradication Found. v. Lewellen, 952 S.W.2d 454, 475 (Tex. 1997) (striking down an act of the legislature authorizing the creation of the Official Cotton Growers' Boll Weevil Eradication Foundation as an overbroad delegation of power to private parties). |
| 627. | See, e.g., Jaffe, supra note 219,
at 247-53 (discussing safeguards such as judicial review and delegations
only to experts); Lawrence, supra note 614,
at 689-94 (suggesting methods which should be available to hold private
delegates accountable, such as public rights to damages and standards guiding
the delegates); Liebmann, supra note 339, at
717-18 (questioning the mechanisms available to the public to check private
delegates); Hans A. Linde, Structures and Terms of Consent: Delegation,
Discretion, Separation of Powers, Representation, Participation, Accountability?,
20 CARDOZO L. REV. 823, 851 (1999):
Authority to make rules enforceable as public law may be delegated to regulatory or managerial agencies composed of interested private persons only with adequate standards capable of further review, and with clear direction that the persons are to use their knowledge to serve the public rather than private interests. . . . When governments authorize private entities to organize large territorial or institutional communities, that authority is subject to the applicable principles governing public policymaking in political communities. |
| 628. | Justice Scalia noted, in dissent, that
the limits of delegation "must be fixed according to common sense and the inherent necessities of the governmental co-ordination." Since Congress is no less endowed with common sense than we are, and better equipped to inform itself of the "necessities" of government; and since the factors bearing upon those necessities are both multifarious and (in the nonpartisan sense) highly political . . . it is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.Mistretta v. United States, 488 U.S. 361, 415-16 (1989) (Scalia, J., dissenting) (quoting J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928)). |
| 629. | "The one aspect of the nondelegation doctrine that the Supreme Court has never disavowed is that Congress cannot delegate lawmaking functions to purely private bodies." Mark Seidenfeld, Empowering Stakeholders: Limits on Collaboration as the Basis for Flexible Regulation, 41 WM. & MARY L. REV. 411, 457 n.199 (2000). |
| 630. | Many decisions and dissents, most recently the four dissenting Justices in United States v. Morrison, 120 S. Ct. 1740 (2000), list Carter Coal as being one of several decisions that misunderstood the nature of the Commerce Clause because it distinguished "mining" from "commerce," but do not discuss the nondelegation issue. See id. at 1767 (Souter, J., dissenting). |
| 631. | In a concurring opinion, Justice Marshall quoted with approval Carter Coal's statement that, "'[I]n the very nature of things, one [private] person may not be entrusted with the power to regulate the business of another, and especially of a competitor. And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property.'" New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96, 125-26 (1978) (Marshall, J., concurring) (quoting Carter Coal, 298 U.S. at 311). |
| 632. | See Liebmann, supra note 339, at 716 ("[T]he nondelegation doctrine, in its commonly expressed form, is nonsense."). |
| 633. | See supra note 570. |
| 634. | See TEX. CONST. art. VIII, § 1(c). The Texas Constitution does allow "'representative associations of agricultural producers with authority to collect such refundable assessments on their product sales as may be approved by referenda of producers.'" Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 459 (Tex. 1994) (quoting TEX. CONST. art. XVI, § 68). The fees at issue in the Boll Weevil case were not refundable, so they did not come under this exception. See id. at 461. |
| 635. | Id. at 457 (quoting TEX. AGRIC. CODE § 74.103(a)). |
| 636. | See id. (citing TEX. AGRIC. CODE § 74.106). |
| 637. | The Texas supreme court explained the system as follows:
[O]nce the initial zone has been created and the first board member elected, the growers of that zone must approve the assessment to fund the eradication at a subsequent referendum. Thereafter, the board is authorized to determine the assessment needed for each additional participating zone, which must be approved by the growers at a referendum. The Foundation may collect the assessment only if the assessment referendum passes. Approval of a zone and of the assessment each requires a vote of either two-thirds of the cotton growers in the zone or of those who farm more than one-half of the cotton acreage in the zone. The election of board members, on the other hand, requires only a plurality vote.Id. at 457 (citations omitted). |
| 638. | See id. at 458. |
| 639. | Id. at 480-81 (Hecht, J., concurring in part and dissenting in part). |
| 640. | See id. at 482. |
| 641. | Id. at 469. |
| 642. | The court cautioned:
[P]rivate delegations clearly raise even more troubling constitutional issues than their public counterparts. On a practical basis, the private delegate may have a personal or pecuniary interest which is inconsistent with or repugnant to the public interest to be served. More fundamentally, the basic concept of democratic rule under a republican form of government is compromised when public powers are abandoned to those who are neither elected by the people, appointed by a public official or entity, nor employed by the government. Thus, we believe it axiomatic that courts should subject private delegations to a more searching scrutiny than their public counterparts.Id. at 469. |
| 643. | See id. at 470. The court continued:
Unfortunately, scholars have concluded that these cases do not yet, when taken together, evince a coherent constitutional standard. When Professor Davis issued the second edition of his treatise, for example, he abandoned his earlier effort to analyze the state law on private delegations "because identifiable principles do not emerge." We thus begin our analysis with full recognition that, if the delegation at issue is to a private entity, we must craft our own criteria to judge its constitutionality.Id.(quoting KENNETH CULP DAVIS, 1 ADMINISTRATIVE LAW TREATISE § 3.12, at 196 (2d ed. 1978)). |
| 644. | Boll Weevil, 952 S.W.2d at 472. The court presented this eight-item list as a condensation of the scholarly attempts to formulate a set of tests found at DAVIS, supra note 643, at 196; Jaffe, supra note 219, at 247-53; Lawrence, supra note 614, at 686-94; and Liebmann, supra note 339, at 717-18. See Boll Weevil, 952 S.W.2d at 471-72. |
| 645. | See id. at 473-75. In Proctor v. Andrews, 972 S.W.2d 729, 735-38 (Tex. 1998), the Texas Supreme Court found seven factors favoring the delegation of the power and only one against, so it upheld a statute requiring cities to use neutral privately-appointed arbitrators in certain civil service disputes. In FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 888 (Tex. 2000), the court held that a provision of the Texas Water Code, which allowed certain private landowners to create "water quality protection zones" in which they would be exempt from a number of environmental and land-use regulations, had unconstitutionally delegated legislative power to private landowners. |
| 646. | Boll Weevil, 952 S.W.2d at 479 (Hecht, J., concurring in part and dissenting in part). |
| 647. | FM Properties Operating Co., 22 S.W.3d at 875 (quoting Boll Weevil, 952 S.W.2d at 469). |
| 648. | Id. (quoting Boll Weevil, 952 S.W.2d at 469). |
| 649. | See generally Freeman, supra note 29, at 543 (providing examples of private actors' roles in administrative contexts and arguing that there is neither a purely private realm, nor a purely public one). |
| 650. | Cf. Michael J. Astrue, Health Care Reform and the Constitutional Limits on Private Accreditation as an Alternative to Direct Government Regulation, 57 LAW & CONTEMP. PROBS. 75, 81 (1994) (suggesting that the nondelegation doctrine may soon show new life in part because of increasing reliance on private policymaking intermediaries in government-sponsored health care systems). |
| 651. | Cf. Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring) (describing the three vital functions served by the public nondelegation doctrine). |
| 652. | One exception to the general rule has been the Office of Advocacy of the U.S. Small Business Administration, which-once it learned of the process-argued vigorously to protect the interests of U.S. small businesses. |
| 653. | See Michael Palage, Working Group B Final Report, Domain Name Supporting Organization, at http://www.dnso.org/clubpublic/council/Arc03/msg00648.html (last visited Oct. 1, 2000) (on file with the Duke Law Journal). |
| 654. | See Judith Oppenheimer, New TLD's at Any Price, Part 2, at http://icbtollfree.com/txt/release-14Part2.htm (last visited Oct. 1, 2000) (quoting Registrars' Constituency & Working Group B Chair Michael Palage as saying, "The trademark lobby must be placated because of its potential ability and inclination to bankrupt new registrars and wreck havoc on their registrant databases") (on file with the Duke Law Journal). |
| 655. | ICANN meets four times per year, with each meeting on a different continent. |
| 656. | See E-mail from Michael K. Kirk, IPC Constituency President, to Members of the IPC (Sept. 13, 2000) (on file with the Duke Law Journal). |
| 657. | Some observers have also suggested that the extraordinary extent to which ICANN's expenses have been dominated by payments to its law firm and its supposedly interim CEO also raises questions of conflict of interest. See, e.g., Karl Auerbach, Platform, Reform of ICANN-Financial Reform, at http://www.cavebear.com/ialc/platform.htm#financial-reform (last updated Aug. 10, 2000) (on file with the Duke Law Journal). |
| 658. | See Meetings of the Initial Board, at http://www.icann.org/minutes/minutes-4mar99.html (Mar. 4, 1999) (adopting a conflicts of interest policy) (on file with the Duke Law Journal). |
| 659. | Conflicts of Interest Policy, §2.3(d), at http://www.icann.org/general/coi-policy.htm (Mar. 4, 1999) (on file with the Duke Law Journal). |
| 660. | See ICANN Amended Bylaws, supra note 541,
art. V, § 7,:
The Board, through a committee designated for that purpose, shall require a statement from each Director not less frequently than once a year setting forth all business and other affiliations which relate in any way to the business and other affiliations of the Corporation. Each Director shall be responsible for disclosing to the Corporation any matter that could reasonably be considered to make such Director an "interested director" within the meaning of Section 5233 of the California Nonprofit Public Benefit Corporation Law ("CNPBCL"). In addition, each Director shall disclose to the Corporation any relationship or other factor that could reasonably be considered to cause the Director to be considered to be an "interested person" within the meaning of Section 5227 of the CNPBCL. The Board shall adopt policies specifically addressing Director, Officer and Supporting Organization conflicts of interest. No Director shall vote on any matter in which he or she has a material and direct interest that will be affected by the outcome of the vote. |
| 661. | See Committee of the Board on Conflicts of Interest,
at http://www.icann.org/general/conflicts-
committee.htm (last visited Oct. 1, 2000) (stating that the current members of the committee are Eugenio Triana (Chair) and Rob Blokzijl) (on file with the Duke Law Journal). |
| 662. | There do not appear to be published rules for the ASO, the PSO, or
the gTLD constituency (which currently has only one member).
The ASO's MoU with ICANN does state: "Selection of the RIR's members of the Address Council will be made via an open and transparent procedure. The individuals selected for the Address Council must not be staff members of any RIR." Memorandum of Understanding, ICANN Address Supporting Organization, § 2 (a)(v), at http://www.aso.icann.org/docs/aso-mou.html (Oct. 18, 1999) (on file with the Duke Law Journal). There is no similar provision in the PSO's MoU. See Memorandum of Understanding, ICANN Protocol Supporting Organization, at http://www.icann.org/pso/pso-mou.htm (July 14, 1999) (on file with the Duke Law Journal). |
| 663. | There are seven constituencies: (1) the ccTLD constituency, see Principles of the ccTLD Constituency of the DNSO, ccTLD Constituency of the DNSO, at http://www.wwtld.org/aboutcctld/history/wwtld1999/const-principlesV4.html (May 25, 1999) (making no mention of conflicts of interest) (on file with the Duke Law Journal); (2) the business constituency, see Commercial and Business Entities Constituency Charter, supra note 222 (setting out the framework for the structure and rules of the business constituency); (3) the gTLD registry constituency, see gTLD Registry Constituency, the gTLD Registry Constituency, at http://www.gltdregistries.org/ (last visited Sept. 30, 2000) (containing no published charter/rules section) (on file with the Duke Law Journal); (4) the ISPCP constituency, see ICANN/DNSO Constituency Groups, Domain Name Server Organization, at http://www.dnso.org/constituency/ispcp/ispcp.html (last visited Sept. 30, 2000) (summarizing ISP's and Connectivity Providers section) (on file with the Duke Law Journal); see also Articles for the ISPs and Connectivity Providers Constituency Group Within the DNSO (ISPCP), Domain Name Server Organization, at http://www.dnso.org/constituency/ispcp/ISPCP.Articles.html (last visited Sept. 30, 2000) (detailing the framework, mission and purpose of this constituency) (on file with the Duke Law Journal); (5) the NCDNH constituency, see NCDNH Constituency Charter, the NCDNH Constituency, at http://www.ncdnhc.isoc.org/docs/charter/drafts/19990816.html (last visited Oct. 11, 2000) (detailing the goals, membership rules and voting procedures of the Non-Commercial Domain Names Holders Constituency) (on file with the Duke Law Journal); (6) the DNSO registrar constituency, see The DNSO Registrar Constituency, supra note 222 (outlining the structure of the registrar constituency); (7) the intellectual property constituency, see By-Laws of the Intellectual Property Constituency, supra 222 (detailing the goals, membership rules and voting procedures for the Intellectual Property Constituency). |
| 664. | See generally YVES DEZALAY & BRYANT GARTH, DEALING
IN VIRTUE: INTERNATIONAL COMMERCIAL ARBITRATION AND THE CONSTRUCTION OF
A TRANSNATIONAL LEGAL ORDER (1996) (describing interviews with arbitrators
and arbitration practitioners which reveal very different worldviews relating
to questions of independence and conflict of interest); Mary C. Daly, The
Ethical Implications of the Globalization of the Legal Profession: A Challenge
to the Teaching of Professional Responsibility in the Twenty-first Century,
21 FORDHAM INT'L L.J. 1239, 1288-93 (1998) (comparing the strict U.S. conflict
of interest rules for lawyers with non-U.S. rules); Robert E. Lutz, Current
Developments in the North American Free Trade Agreement: A Guide for Future
Economic Integration Efforts, 18 WHITTIER L. REV. 313, 318-19 (1997)
(noting the different views between Mexican and American lawyers).
One striking example of this phenomenon was the heated statement by ICANN board member Hans Kraaijenbrink that although he was a member of the executive board of the European Telecommunications Network Operators, an organization that had submitted a DNSO proposal, he would not recuse himself from the board debate considering their application. See ICANN Public Meeting-Meeting Proceedings Archive: Meeting Held in Suntec City, Downtown Singapore, Berkman Center for Internet and Society, at http://cyber.law.harvard.edu/icann/singapore-0399/archive/ Domain Name Supporting Organization applications (Mar. 3, 1999) (audio archive of ICANN meeting, with Kraaijenbrink's comments beginning at 1:05:00). |
| 665. | See Weinberg, supra note 39, at 245 & n.287 (discussing the limited role of representation in the standards body). |
| 666. | Posting of Joe Sims, Joe_Sims@jonesday.com, to comments-bylaws@icann.org (Oct. 23, 1999) (on file with the Duke Law Journal). For the entire dialogue between Sims and Froomkin, see A. Michael Froomkin, Personal Comments on the WIPO/ICANN Process, at http://www.law.miami.edu/~amf (last visited Sept. 30, 2000) (on file with the Duke Law Journal). |
| 667. | See supra note 39. |
| 668. | Carter v. Carter Coal Co., 298 U.S. 328, 311 (1936); cf. Patrick Greenwell, Despite Our Best Efforts, ICANN Fails in Many Respects, at http://www.icannwatch.org/archives/essays/944584730.shtml (Dec. 7, 1999) (accusing ICANN CEO Mike Roberts of conflicts of interest) (on file with the Duke Law Journal). |
| 669. | Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (quoting Ex parte Virginia, 100 U.S. 339, 346-47 (1880)). |
| 670. | See Anticybersquatting Consumer Protection Act, 15 U.S.C.A. § 1125(d) (West Supp. 2000). |
| 671. | See supra notes 188-89 and accompanying text (listing the four principles). |
| 672. | See supra note 36 and accompanying text. |
| 673. | In fact, however, if there is a technical limit on the number of additional gTLDs that the DNS can bear, it is likely to be a far larger number than the less than 10 that ICANN currently contemplates creating. See supra note 12. Recall, for example, that Jon Postel himself proposed creating hundreds of gTLDs. See supra notes 148-50 and accompanying text. |
| 674. | See supra note 12 (noting Auerbach's recent election to ICANN Board). |
| 675. | E-mail from Karl Auerbach, to ICANN wc-c Mailing List (Dec. 29, 1999), Domain Name Server Organization, http://www.dnso.org/wgroups/wg-c/Arc01/msg00456.html (on file with the Duke Law Journal). |
| 676. | Whether there should be a privacy-enhanced TLD or whether all TLDs should allow (or be required) to have "unlisted" personal contact information for registrants would probably be a policy issue, since the Internet would run fine either way. |
| 677. | See ICANN-NSI Registry Agreement, supra note 42; Registrar Accreditation Agreement, supra note 42; see also supra notes 89-90 and accompanying text (describing ICANN's attempt to sign contracts with root server operators). |
| 678. | Pincus, supra note 43. DoC's General Counsel
continued:
There is concern in the Internet community about the possibility of over-regulation, and therefore ICANN should assure all registrars and registries, through contract, that it will restrict its policy development activities to matters that are reasonably necessary to achieve the goals specified in the White Paper and that it will act in accordance with the procedural principles set forth in the White Paper. |
| 679. | Id. |
| 680. | See A. Michael Froomkin, ICANN Should Sign a Contract with the Internet, at http://www.icannwatch.org/archives/essays/932650853.shtml (July 22, 1999) (on file with the Duke Law Journal). |
| 681. | For the 2000-01 fiscal year, ICANN expects that its total budget for professional and technical services, which include "agreements for legal services," will be $984,000. ICANN's budget states its total expenditures, capital equipment, and reserve contribution for the 2000-01 fiscal year will be $5,024,000. See 2000-01 Budget, supra note 41, tbl. 1. |
| 682. | See supra note 43. |
| 683. | See supra note 44 and accompanying text. |
| 684. | ICANN is also contractually obligated to registrars and NSI to allow them to challenge claims that future policies are the product of consensus. See supra note 42 and accompanying text. |
| 685. | See supra note 39. |
| 686. | There is a strong sentiment in some quarters that "industry self-regulation" should be used to ban hate speech on the Internet. See generally J.M. Balkin et al., Filtering the Internet: A Best Practices Model 2-10 (Sept. 15, 1999) (arguing that self-regulation is the only effective means of controlling Internet content), http://webserver.law.yale.edu/infosociety/Filtering5.rtf (on file with the Duke Law Journal); Self-Regulation of Internet Content, Bertelsmann Foundation, at http://www.stiftung.bertelsmann.de/internetcontent/english/download/Memorandum.pdf (1999) (examining the need for and structure of a self-regulating system for the control of Internet content) (on file with the Duke Law Journal). |
| 687. | Early in the ICANN process, rights holders worried about the ease with which the Internet can be used to violate their copyrights were already demanding that "whois"-the DNS function that allows anyone to see who has registered a domain name-be set up in a way that made tracking suspected violators easier-and that was before Napster. |
| 688. | The only potential source of limits would be California nonprofit law. But the California law imposes few, if any, meaningful limits on management discretion. For example, the ICANN management could engage a for-profit group to manage the DNS under contract, or it could form a joint venture with a profit-making body. Indeed, nonprofit tax-exempt organizations in California appear to be almost perfect examples of Berle and Means's "managerial firm" in which ownership can be fully separated from control. Cf. CAL. CORP. CODE §§ 5049, 5410; ADOLPH A. BERLE, JR. & GARDINER C. MEANS, THE MODERN CORPORATION AND PRIVATE PROPERTY (1932). |
| 689. | As one ICANN critic put it:
ICANN is less accountable by far, in terms of how it's being designed, than the WTO is. I mean at least at WTO . . . if we want to get change in the WTO, and in fact we do this, we actually talk to governments. We're talking right now to the French, the Norwegians, the Australians, the South Africans, the Thai, . . . the Pakistanis, . . . [about] different changes we want to see in negotiations with WTO. I mean, it's pretty hard to do, but in some ways it's easier than dealing with ICANN. See because there's some process, there's some political process. . . . Governments tend to have a broader set of interests than big companies do, big profit-making companies do. I mean, what do we do, lobby Disney? I don't want to do that. I don't know anybody that does.Gina Paik & P-R Stark, The Debate Over Internet Governance: Jamie Love IV.g., Berkman Center for Internet and Society, at http://cyber.law.harvard.edu/is99/governance/love.html (2000) (quoting remarks of Director of Consumer Project on Technology James Love) (on file with the Duke Law Journal). |
| 690. | See, e.g., Karl Auerbach, Platform: Reform of ICANN-Jones Day Must Go, http://www.cavebear.com/ialc/platform.htm#reform-jdmg (last modified Aug. 10, 2000) (proposing that Jones, Day be replaced as ICANN's lawyers in part because they are too expensive) (on file with the Duke Law Journal). |
| 691. | See generally George J. Mitchell et al., Report of the Special Bid Oversight Commission (Mar. 1, 1999) (reporting that the IOC's governing structure does not provide adequate accountability), Sydney Morning Herald, http://www.smh.com/au/news/content/olyscandal/report.html (on file with the Duke Law Journal). |
| 692. | See, e.g., PFIR Statement on Internet Policies, Regulations, and Control, People For Internet Responsibility, at http://www.pfir.org/statements/policies (July 23, 2000) (calling for "a completely new, more formally structured, not-for-profit, internationally-based organization") (on file with the Duke Law Journal). |
| 693. | White Paper, supra note 15, at 31,743. |
| 694. | See, e.g., Robert H. Anderson et al., Universal Access to E-Mail: Feasibility and Societal Implications, at http://www.rand.org/publications/MR/MR650 (1995) (on file with the Duke Law Journal); Dana Ott, Power to the People: The Role of Electronic Media in Promoting Democracy in Africa, 3 FIRST MONDAY 4 (1998), at http://www.firstmonday.dk/issues/issue3_4/ott/ (on file with the Duke Law Journal). |
| 695. | See supra note 73 and accompanying text. |
| 696. | See supra note 12. |
| 697. | That centralized policymaking leads to error-if not tyranny-is perhaps the central insight of the Framers. Both horizontal separation of powers and federalism (vertical separation of powers) are structural responses to this insight. See generally THE FEDERALIST NO. 28 (Alexander Hamilton), NO. 51 (James Madison). |
| 698. | Perhaps by an elected council from those accredited to the UN, see Directory of NGOs Associated with DPI, at http://www.un.org/MoreInfo/ngolink/ngodir/NGODirAlph/alphabet.htm (last visited Oct. 1, 2000) (maintaining a directory of such organizations) (on file with the Duke Law Journal). |
| 699. | The rulemaking portion of the APA does not apply to foreign affairs. See 5 U.S.C. § 553(a)(1) (1994). |
| 700. | Since trademarks are limited by geography and type of business, many firms commonly have the same trademark either for the same goods in different places, or different goods in the same place. |
| 701. | This is the concept behind the "superroot." See The Stable Implementation of New Top Level Domains, The SuperRoot Consortium, at http://www.superroot.net/ (last visited Oct. 13, 2000) ("The SuperRoot Consortium root is not an alternative to the IANA/ICANN legacy root since we use the IANA/ICANN legacy root as our foundation. The SuperRoot Consortium root can be thought of as a 'staging root' for the testing and implementation of new top level domains.") (on file with the Duke Law Journal); supra notes 61, 75 and accompanying text (describing the alternate root run by the Open Root Server Confederation). |
| 702. | See Froomkin, A Commentary on WIPO's Management, supra note 13, ¶ 78; Craig McTaggart, Governance of the Internet's Infrastructure: Network Policy for the Global Public Network, § III.A.2.B, Unit for Internet Studies, at http://www.internetstudies.org/members/craimct/thesis/section3.htm (last updated July 25, 2000) (noting that since the early days of networked computing, "the value of being connected was steadily rising as more and more other networks joined") (on file with the Duke Law Journal). |
| 703. | For example, see the Instructions at http://www.superroot.net/how-to.html (last visited Oct. 10, 2000) (on file with the Duke Law Journal); see also note 75 (explaining how to access the ORSC root). |
| 704. | My current provider of DSL services, BellSouth, blocks http calls to non-ICANN domain names. Oddly, all other protocols, including telnet and ftp, work fine. |
| 705. | Amendment 19, supra note 301, § I.B.4.E. |
| 706. | Criteria for Assessing TLD Proposals, § 1, at http://www.icann.org/tlds/tld-criteria-15aug00.htm (Aug. 15, 2000) (on file with the Duke Law Journal). |
| 707. | See, e.g., John Markoff, Cyberspace Programmers Confront Copyright Laws, N.Y. TIMES, May 10, 2000, at A1; Ian Goldberg & David Wagner, TAZ Servers and the Rewebber Network: Enabling Anonymous Publishing on the World Wide Web, 3 FIRST MONDAY 4 (1998), at http://www.firstmonday.dk/issues/issue3_4/goldberg/index.html (on file with the Duke Law Journal); Andy Oram, Gnutella and Freenet Represent True Technological Innovation, at http://www.oreillynet.com/pub/a/network/2000/05/12/magazine/gnutella.html (May 12, 2000) (on file with the Duke Law Journal). |
| 708. | See, for example, the web page for one such company, ZeroKnowledge Systems, at http://www.zeroknowledge.com (last visited Oct. 1, 2000) (on file with the Duke Law Journal). |
| 709. | See Réka Albert et al., Error and Attack Tolerance
of Complex Networks, 406 NATURE 378 (2000) (suggesting that because
the WWW is an "exponential" rather than "scale-free" network, it is vulnerable
to failure at key points), available at http://www.nature.com/cgi-taf/DynaPage.taf?file=/nature/journal/v406/n6794/full/
406378a0_fshtml&_UserReference=D82349ED46B4E09D92A99AAF93F139E898C1 (on file with the Duke Law Journal); see also Telegeography, Inc., An Atlas of Cyberspace: Topology Maps of Elements of Cyberspace, UCL Department of Geography, at http://www.geog.ucl.ac.uk/casa/martin/atlas/topology.html (last visited Oct. 15, 2000) (mapping Internet as sets of hubs and spokes and showing fractal, but distinctly centralized, Skitter diagrams of Internet connections) (on file with the Duke Law Journal). |
| 710. | See, e.g., Carl S. Kaplan, French Nazi Memorabilia Case Presents Jurisdiction Dilemma, N.Y. TIMES, Aug. 11, 2000 (reporting that states are concerned about cross-border offenses, including hate speech, libel, and fraud), http://www.nytimes.com/library/tech/00/08/cyber/cyberlaw/11law.html (on file with the Duke Law Journal); Reuters, German Urges Global Rules on Hate on Web, N.Y. TIMES, June 28, 2000 (reporting the German Justice Minister's call for global rules against hate speech), http://www.nytimes.com/library/tech/00/06/biztech/articles/28tech-germany.html (on file with the Duke Law Journal); Leonard R. Sussman, Censor Dot Gov, at http://www.freedomhouse.org/pfs2000/sussman.html (last visited Oct. 4, 2000) (surveying countries' domestic content and access control laws); see also A. Michael Froomkin, The Empire Strikes Back, 73 CHI.-KENT L. REV. 1101, 1114-15 (1998) (arguing that reactive anti-democratic supranational agreements by governments frightened by regulatory arbitrage may be "the great looming Internet irony"). |
| 711. | Carter v. Carter Coal Co., 298 U.S. 238, 238 (1936). |
