Testimony before the

 

Committee on Commerce

 

Subcommittee on Telecommunications,

Trade, and Consumer Protection

 

On the subject of

 

Electronic Commerce:

The Future of the Domain Name System

 

 

 

By Jay Fenello,

President

 

Iperdome, Inc.

1150 Lake Hearn Drive, Suite 200

Atlanta, GA 30342

 

 

 

June 10, 1998

10:30 a.m., Room 2123

Rayburn House Office Building

U.S. House of Representatives

Washington, D.C. 20515

 

 

Introduction

Hello,

My name is Jay Fenello, and I am the President of Iperdome, Inc., a small, entrepreneurial company that has been fighting to enter the registry business since January, 1997. Our concept is to provide Netizens with a permanent address on the Internet, one that does not change when they change jobs, schools, Internet Service Providers, or email addresses.

I would like to begin by thanking the distinguished members of this committee for the opportunity to testify here this morning. While the topic at hand is broad and complicated, I would like to offer some insights that I've gained over the last year and a half.

Although many do not yet realize the importance of these deliberations, the Internet is about to undergo a birthing process. When it is complete, we will have established some ground rules for the newest human frontier.

Those who have ventured forth into the ether have found a new world -- one of ideas, freedom, and commerce. What these deliberations are about is how we will get along in this cyber world, who is in charge, and who gets to decide those questions that can only have a single answer on the Internet. Domain Names just happen to be one of those things.

History

My involvement began back in January, 1997 when I set out to market Personal Domain Name services under the .per(sm) name and Top Level Domain. To facilitate our launch, I joined with other like minded companies to form eDNS, an enhanced Domain Name System that featured a free-market root server infrastructure.

Although we met with initial success, we quickly came under intense attack by supporters of a competing plan known as the MoU. While I didn't know it at the time, I had wandered into a political mine field and a debate that continues through this very day.

At first, I could not understand why they were intent on destroying eDNS. We wished them no harm, and only wanted a chance to compete in a fair and open market. It wasn't until later that I realized that this debate was about more than just Domain Names.

Since that time, many companies have tried to enter this new industry, and many companies have been wronged in their quest. Some have paid $10,000 to a group who has failed to follow through on their promises. Others have invested significant time and money, only to find their options limited because of potentially unfair trade practices and collusion. This is a direct result of certain government contractors operating without proper supervision, and engaging in certain anti-competitive activities.

Postel on Governance

As the Internet evolved from a Defense Department project to an academic project, certain government contractors were tasked with taking care of some of the administrative activities required to keep the Internet functioning properly. Over time, these contractors mistakenly assumed that a lack of supervision was a green light for them to assume a permanent role in the future governance of the Internet. This can be seen as far back as 1995, when the IANA started to craft its evolution through its affiliation with the Internet Society. Their plan culminated with the gTLD-MoU.

I say this not to disparage either of these organizations, nor to imply that any retribution is necessary. I say this only to point out some of the history behind this debate, and to warn this committee that these groups once again appear to be following this same agenda.

On May 19th (weeks before the White Paper was announced), Jon Postel issued a memo to Daniel Karrenberg at RIPE describing actions he had taken to reorganize and restructure the IANA organization. Just like the IAHC process before it, there appears to be a secret and coordinated attempt to take over Internet governance by the same people who were behind the MoU.

The White Paper

While the White Paper has not resolved any of the pending disputes in the DNS controversy, it does clearly address the most distasteful features of the IAHC process.

For example, those who opposed the MoU complained that it put a very small group of stakeholders in charge. It featured closed meetings and discussions, no due process, had little if any representation, and was set up as a Swiss based cartel to avoid anti-trust considerations. It attempted to create a highly controlled, bureaucratically administered name space, instead of a free market approach that has fueled much of the Internet's world wide growth.

In addition, the IAHC process broke long standing Internet traditions when it discarded draft postel, and it ignored existing working code and Intellectual Property rights. It also included governmental organizations like the ITU that were previously known to be hostile to the private networks that make up the Internet.

The White Paper has clearly said no to all of these features of the IAHC process.

Unfortunately, Postel's memo and subsequent comments by leaders of the POC, PAB, and the ISOC appear to be coordinated and highly suspect. Not only are these plans proceeding behind closed doors, but there are questions about the IANA's role in the Green Paper process. What has been discussed, and where are the ex parte summaries of those discussions?

 

Cultural Values

One of the big questions being addressed through this process is that of jurisdiction, which in cyberspace, can be very confusing. For example, when a Netizen in France registers a domain through a Registrar in Germany, to a Registry located in Japan, that is resolved through a root server located in the US, where does jurisdiction lie?

The implications of this question far exceed that of Domain Names. Jurisdictional questions will also determine rules for such diverse issues as free speech, personal privacy, pornography, political dissent, encryption, and Intellectual Property (IP). The last item is especially important, for IP is one of the most important and valuable commodities on the Internet. Just like land and seeds were critical to the Agricultural revolution, and raw materials and equipment were critical to the Industrial Revolution, concepts and ideas are critical to the Informational Revolution.

It is questions like these that have made this debate so contentious. And while I have no desire to force the citizens of the world to use the United States as their jurisdiction, by the same token, I do not want them to preempt my rights as a U.S. Citizen. For these reasons, I support a process whereby cultural values can coexist and compete. Over time, this will likely lead to better relations between all countries of the world, as we each learn to appreciate the cultural differences between our connected societies.

Conclusion

According to Becky Burr, the White Paper is really about process. It seeks to establish a globally and functionally representative organization, operated on the basis of sound and transparent process that protects against capture by self-interested factions, that provides robust professional management, that is fair, open, and pro-competitive, and that will evolve to reflect changes in the constituency of Internet stakeholders.

I fully support these goals and this process. I ask Congress to take whatever steps are necessary to ensure that these ideals are realized through the White Paper process.

Finally, and unfortunately, I have few suggestions on how to make right the wrongs that have occurred to the many companies who have tried to compete in this new industry. One possibility is to ensure that Intellectual Property rights are not confiscated without just compensation, as guaranteed under the Constitution. If IBM can have IP rights in ibm.com, then Iperdome can have IP rights in .per. After all, Iperdome has been using the .per(sm) service mark in interstate commerce since January 1997, and we have over 1000 clients from throughout the United States and throughout the World. Granting IP rights to second level domains, but not to Top Level Domains, would be arbitrary and unfair.

In closing, I thank this committee for this opportunity to testify, and I hope that you will continue to monitor the transition as outlined in the White Paper.