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The long-awaited November announcement by ICANN, the Internet Corporation for Assigned Names and Numbers, that it had finally approved seven new top-level domains was supposed to be a good thing. The addition of “.aero,” “.biz,” “.coop,” “.info,” “.museum,” “.name,” and “.pro,” which was expected to be operational later this year, would alleviate Internet traffic on the overburdened “.com,” “.net” and “.org” domains. But for Leah Gallagos, the prospect that her company may soon be able to register “.biz” domain names is somewhat less than enticing. Gallagos, president of the Atlantic Root Network, a Virginia-based Internet registry, has been registering “.biz” addresses for the past year. Gallagos is part of a small but growing number of businesses that participate in little-known alternative “root” systems to the one controlled by ICANN. A root system steers you to a Web site according to the name you type in, much like the telephone company directs your calls. ICANN, which the Department of Commerce created in November 1998 to oversee the Internet’s domain name system, controls the root systems that supports the well-known “.com,” “.net” and “.org” domains. The alternative root systems support over 100 other domains, such as “.god,” “.earth” and Gallagos’ “.biz.” If ICANN goes forward with its plan, Web users could type in the same domain name ending in “.biz” and go to different Web sites, depending on whether the computer is configured to use the ICANN-approved server or an alternate. Gallagos has filed a petition with the Department of Commerce to prevent ICANN’s designated registrar, NeuStar, from selling “.biz” domain names. “If ICANN allows NeuStar to carry ‘.biz,’ it will disenfranchise 3,500 businesses who have already registered with us,” Gallagos said. She said business has already dropped off due to ICANN’s action. “There is a regulatory taking here,” she said. ICANN’s chief policy officer Andrew McLaughlin said Gallagos’ claim was a non-issue. “We’re running this domain name system and she’s running hers, and she shouldn’t think she has preemptive rights over ours,” he said. CYBERSQUATTER CONCERNS Gallagos was not the only one dismayed by ICANN’s announcement. “This creates a lot of concern for my clients because there are still no assurances that cybersquatters won’t get their domain names,” said Peter J. Toren, a partner at Brown & Wood in New York. “Companies already have to spend thousands of dollars a year warehousing domain names they don’t really want,” Toren said, adding that the new domains will simply add to these costs. But McLaughlin said that ICANN was taking steps to assure that the introduction of the new domains would not lead to increased cybersquatting. Each of the registrars has to do something to minimize problems with cybersquatters, he said. Some will offer a so-called sunrise provision, by which trademark owners will get first crack at registering a domain name. Taking another approach, NeuStar has has proposed to offer a secure domain name registration service in part to protect against hijackings and registration lapses for $500. Also, most of the new domains are restricted, which means that registration with them will require documentation. For instance, “.pro,” which is intended as a domain for professionals such as lawyers, doctors and accountants, will require proof of professional accreditation. MARKETING TACTICS? Critics protest that such measures are merely marketing tactics to pressure businesses into registering in the new domains and a means to generate revenue. They argue that laws like the Anti-cybersquatting Consumer Protection Act and ICANN’s Uniform Domain Name Dispute Resolution Process (UDRP) have left trademark owners well-equipped to defend their mark. UDRP does appear to favor trademark owners. In a recent report, Professor Milton Mueller, of Syracuse University School of Information Studies, analyzed three of the four groups authorized to arbitrate domain name disputes. He found trademark owners, who are the only ones permitted to file a complaint under UDRP, won 80 percent of the time. With 28.8 million domain names crowded into a space occupied by three domains — “.com,” “.org” and “.net” — it is widely agreed that new domains are needed. However, according to Toren, the new domains ICANN has chosen are not the answer, because they do not address the inherent tension between trademark law and the domain-name system. In trademark law, Toren explained, you can have multiple owners of the same mark as long as they are not providing the same goods and services. The current domain name system permits only one owner to use a mark. Thus, in the bricks and mortar world, Ford Motor Co., Ford Models and the Ford Foundation can all peacefully, and legally, co-exist. But on the Internet, only one of these groups can have the right to register “ford.com.” By choosing these domains, ICANN has not cleared up these problems, Toren said, adding, “I think they could have broken it down further by goods and services.” “If they came up with ‘.aero’ for airlines, why not ‘.restaurant’?” he said. ICANN’s McLaughlin agreed that trademark law and the domain name system are a poor fit, but he said that was not ICANN’s concern: “We’re not a trademark protection organization, we’re a technical coordination body.” As formidable as ICANN’s problems on the home front may seem, its challenges abroad may prove even more daunting. Outside of the United States, it faces 244 administrators who maintain country-code top-level domains (referred to as ccTLDs), such as Germany’s “.ge.” ICANN badly stumbled in its initial effort to take control of the ccTLDs by sending them invoices without contracts, said Michael Froomkin, a University of Miami School of Law professor who maintains a Web site called ICANNwatch.com. Although some of the ccTLD administrators donated money, Froomkin said, most wanted to know “what have you done for us lately?” So far, negotiations have yet to yield any formal agreements, although McLaughlin said that “it’s actually going well.” ICANN is trying to work out two model agreements, he said, but given the diversity of interests among the ccTLDs, as a practical matter, finalization is “months” off on the horizon. As a creature of the U.S. government, ICANN’s authority over these global assets is inherently weak, Froomkin said. According to Ellen Rony, co-author of The Domain Name Handbook, the ccTLD administrators have already threatened to seek an alternate root system such as the one that supports Gallagos’ “.biz.” LEGALITY QUESTIONED ICANN’s growing pains may even result in its demise. Following a Feb. 14 hearing on ICANN before the Senate Commerce Subcommittee on Communications, the subcommittee chair, Senator Conrad Burns, R-Mont., wrote letters to the Secretary of Commerce and the General Accounting Office (GAO) questioning both ICANN’s legality and performance. In the letter to Commerce Secretary Don Evans, Senator Burns urged him “to refrain from taking any major steps to further empower or delegate authority to ICANN.” The letter to the GAO asked it to assess whether the actions of ICANN, such as the selection of the new domains and imposition of the UDRP, “have been legal under the non-delegation doctrine of the U.S. Constitution, the Administration Procedures Act (APA) and other federal statutes.” The letter to the GAO referred to an October 2000 Duke Law Journal article by Froomkin, in which he argues that the Commerce Department has used ICANN as an end run around the APA, which requires agencies to follow certain procedures in promulgating regulations. ICANN was initially created to address purely technical concerns associated with maintaining the domain name system, Froomkin explained. “But it is making decisions that are fundamentally regulatory in nature,” without the safeguards of the APA, he said. In fact, he said, the way ICANN functions is “night and day compared to the APA process.” Senator Burns’ press secretary, J.P. Donovan, said the letters were prompted by the Senator’s concerns over a lack of due process in the selection of the new domains. He stated they have yet to receive a response to either letter, which were sent March 21. But ICANN’s McLaughlin did not appear too troubled by this latest threat to an organization that has faced criticism for practically every step it has ever taken. “ICANN has been scrutinized by the GAO and gotten a clean bill of health,” he said. As for Froomkin’s article, McLaughlin said, “He just doesn’t understand [ICANN] at all.”

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