Internet Governance in Australia:
Modelling Self-Regulatory Structures in the Domain Name System
| Author: |
Liz Williams BA, MA
PhD Candidate, Queensland
University of Technology
|
| Issue: |
Volume 10, Number 2 (June 2003)
|
Contents:Author's Note: The initial ideas
for this article were presented on 7 May 2002 at the Domain Names
Systems and Internet Governance
seminar hosted by the University of New
South Wales Cyberspace Law and Policy Institute
http://www.bakercyberlawcentre.org. The author
was a member of the .au
Domain Administration's Competition Model Advisory Panel
prior to her election to the Board of Directors
for the .au Domain
Administration during 2001-2002. She is the immediate past Deputy Chair
of the Board. She is actively involved
in the ICANN community and has
worked on both corporate and not-for-profit projects in the field. In
June 2003, she submitted her
doctoral dissertation – The
Globalisation of Regulation and its Impact on the Domain Name System:
Domain Names and the New
Regulatory Economy - to the Queensland
University of Technology's (QUT) Faculty of Information
Technology. The views expressed here
are not necessarily those of .auDA
or the .auDA Board of Directors and are provided as part of broader
doctoral research. The dissertation
abstract and chapter outlines can
be found at http://www.lizwilliams.net.
- This article sets out the development of
Internet governance in Australia. It describes the history of the
administration of the .au
country code and the formation of the private
sector not-for-profit regulatory organisation responsible for the
ongoing management
of .au. It also gives some commentary on particular
aspects of the establishment of new models for managing the technical
resources
of the global DNS[1]
in the context of national jurisdiction.
- The individuals in these
developments are important, especially where personalities, rather than
processes, have governed many of
the regulatory outcomes. Some time is
spent examining the input of the classic Postel apostle, the Federal
Government Minister and
his views, the contribution of active consumer
representatives and technical experts. Regulatory volunteers, from both
the corporate
and public sector, are well in evidence. They have played
a critical role in developing consensus-driven policy now implemented
by
a not-for-profit regulatory organisation in a highly competitive
market place.
- One of the key developments in
the implementation of new domain name registration policies has been
the re-delegation of the control
of the .au country code identifier.
The specific international rules which govern the transfer of the
management of country codes
are controlled by the Internet Assigned
Numbers Authority (IANA). Most important in the Australian context was
that the re-delegation
of the management of the .au happened at the
same time as the ratification of .auDA as the appropriate organisation
to manage domain
name registration policy. In addition, .auDA was
responsible for the development of policies that enabled the
introduction of competition
into the provision of registrar and
registry services. As a consequence of the re-delegation of the .au
code, .auDA was able to sign
the first country code registry contract
with ICANN.
- There are direct parallels to
developments that have occurred at the international level. The
Australian process has been more disciplined,
more time-bound and more
capable of managing distractions than the experience of ICANN.
- The work here is a case study
of how complex and multifaceted DNS governance has become in a national
context. The .au domain name
space provides an illustration of the
evolution of geographic[2]
top level DNS governance at a critical point, at an international
level, in the development of ICANN. The evolution of the .au domain
name space is instructive in understanding the impact of hybridisation
of regulation on a global scale.
- This discussion is important
because it demonstrates a considerable shift in thinking about a
technical resource to a naming system
which has a policy and political
life outside of its technical function. In addition, whilst it is not
discussed in detail here,
intellectual property protection advocates
(both owners of IP(r) and their lawyers) have done much to ensure that
domain naming was
included in the portfolio of IP(r) protection. As
discussed in the broader research, domain names are another dimension
of branding
and trademarks, for which protection and preferential
policy treatment have been hard fought. This fight has had substantial
political
and commercial implications beyond considerations of the
technical capacity of the numbering system.
- The historical context for
consideration of the Australian approach to DNS governance recognises
that "Jon Postel used the ISO3166
code ... based on a United Nations
register o[f] ... 243
'recognized territories' and asked individuals or academic institutions
to overtake the responsibility for the management of the ccTLD ... No
governments have been involved in the definition of ccTLDs
and the
operations of the relevant registrars started without any legal
foundations in the 'territories'.[3]
Until the formal re-delegation of the .au space to .auDA in September
2001, University of Melbourne staff member Robert Elz[4]
was the ICANN/IANA delegate. In 1996
the domain name management function for .com.au (which had outgrown
Elz' capacity to manage
as a volunteer) was transferred to MelbourneIT
as part of an arrangement with the University of Melbourne.[5] Others, in cooperation with Elz,
managed closed domains (closed in that only those within particular
organisations could register
names within the domain) such as .csiro[6] and .edu[7]
and the open domain .id.au. Information on other closed 2LDs such as
.asn.au, .gov.au and .org.au can be found on the .auDA website.[8]
- By way of background, it is
worthwhile to examine in more detail the process of re-delegation. The
re-delegation of a country code
is not a particularly special process
nor necessarily an historic event. It is, in a technical sense, the
change of contact details
for the management of particular portions of
Internet architecture, consistent with the development of mechanisms by
Dr Jon Postel
to share responsibility for the technical tasks of
managing Internet architecture.
- The case of .au is, however,
slightly different as the re-delegation was a particularly lengthy and
contested process conducted at
a time when there was significant
perceived commercial advantage to be gained through control of .au. In
addition, it was the clear
intention of the Federal Government to
enable more robust management of the domain name industry through the
structure of .auDA,
rather than relying, as had been in the case in the
past, on one individual for that service.
- The process for re-delegation
is set out in the IANA rules.[9] As an essentially
technical function, the management of domain name registration policies
and the technical control of root servers
is a relatively
straightforward task. In an uncontested re-delegation, the former
delegate notifies IANA that the new delegate will
take over
responsibility for the domain. The situation becomes markedly different
when the delegation of control is contested or,
as in the case of other
ccTLDs such as .nu, .la and .tv, where the control of the country code
had very significant (often personal)
commercial implications.
According to anecdotal information from ICANN staff, re-delegations of
country codes take up a disproportionate
amount of ICANN/IANA staff
time. The IANA reports of a variety of re-delegations bear that view
out.[10]
- The most immediate impact of
the decision to re-delegate the responsibility for .au, after the
earlier transfer to MelbourneIT, was
to separate the registry function
(performed by AusRegistry in the new competitive regime) and registrar
functions (now performed
by a variety of domain name registration
businesses). This achieved two goals similar to those set for ICANN
which were the introduction
of competition into the provision of
registrar services[11]
and the opportunity to conduct an open and competitive tender process[12]
for the management of the registry.
- The evolution of the domain
name market continues, in parallel with a regulatory experiment of open
DNS governance at an international
level. However, it is now possible
to identify a set of factors that have enabled an orderly transition
from a monopoly provided
service, limited by a highly restrictive name
registration policy and, more fundamentally, by uncertainty about
policy rules and
mechanisms for representation of community views. In
contrast, there are now clear methods in place to resolve a wide range
of potential
disputes, for example, with respect to registrar conduct,
to the activities of re-sellers, to anti-competitive conduct and the
failure
to meet suitable technical standards.
- The domain name industry in
Australia has become a test bed for the development of a hybrid
regulatory model. This model includes
industry, consumer groups, the
broader public and more traditional regulatory agencies engaging in
open governance. Active involvement
from the Government and legal
practitioners, an outspoken and technically savvy Internet community
and an influential public have
created an environment which recognises
the way in which the DNS has, historically, been managed and which has
moved the industry
to a more predictable and objective regulatory
footing.
- Other country code
administrators, such as those in the Pacific and members of the Asia
Pacific Network Information Centre (APNIC)
now look to Australia for
guidance on sound practices to manage their domain name space. APNIC
provides, amongst other things, technical
assistance and advice to
developing economies. In addition, Australia's approach to DNS
governance has been closely observed by members
of the Pacific Island
Forum (PIF) members which includes, for example, .nu which has been the
subject of a heavily contested re-delegation.
- The broader research seeks to
understand some thinking which frames the development of hybrid
regulatory models. The equations of
sovereignty versus stewardship;
ownership versus trusteeship; national governments versus international
governance and the commercial
versus non-commercial use of Internet
resources are as relevant in the Australian context as they are
internationally. Balancing
these equations, in the context of DNS
governance, remains a challenge to orderly and technically sound
management of critical network
resources which enable the Internet to
function effectively.
- Extra impetus was given to
domestic developments by external pressure from ICANN to sign its ccTLD
contract and to achieve the re-delegation
of the .au domain. At the
same time, ICANN was trying to sign agreements with new open gTLDs such
as .biz, .info, .name and .pro
and new closed gTLDs such as .coop,
.museum and .aero. This "signing up" process is discussed later in the
chapter. It was seen as
a way to bolster ICANN's legitimacy and mandate
to manage the DNS on an international basis.
- This article also includes some
objective measures of success of the transition to a private sector
regulatory solution. These include
policy development procedures that
are inclusive, open and highly sophisticated methods of achieving
consensus (or at least tolerant
acceptance of reasonable market
constraints). Licensing and tendering processes are open and, in terms
of the number and quality
of participants, highly competitive. The
total number of active market players has increased dramatically and,
perhaps the best measure
of all, prices for domain names for end-users
have plummeted.[13]
- On the NOIE website, a domain
name as defined "... a means of identifying and locating an
organisation or other entity on the Internet.
Domain names ... are a
scarce resource which need to be managed to ensure the efficient
allocation of web addresses".[14] The definition
recognised, consistent with international practices, that a domain name
is hierarchical and often conveys information
about the type of entity
using the domain. Domain names at the same level of a particular
hierarchy must be unique; for example there
can only be one
'smiths.com.au' domain within the .com.au space.
- The Australian domain name
industry includes entities engaged in the provision of domain name
registration services such registry
operators, registrars and their
resellers, and dispute resolution providers. The prohibition of a
secondary resale market for .au
domain names means that, in contrast to
some other countries, the Australian industry does not feature domain
name auction and domain
name valuation businesses.
- Understanding what domain names
are and why they are important to individuals and businesses is
critical to placing the discussion
here in a realistic, usable context.
Discussion in the broader research identified that domain names are
critical as navigation tools
on the Internet, critical to brand
identification and critical to the utility of Internet resources. In
addition, domain names have
an intrinsic navigation value. Without a
domain name, finding resources on the Internet is highly problematic
and relies upon remembering
the base IP address as a number string
rather than the more memorable name it matches. Even though it is
possible to find Internet
based resources such as websites for
businesses without a domain name, domain names make it a much easier
and more intuitive task.
- As a product or service, the
registration of domain names as a business in itself is attractive
enough, in the Australian context
alone, for eighteen companies[15]
to offer registrar services. This does not include over 1,000, or more,
resellers who act on behalf of registrars to sell domain
name
registrations.
- In Australia, as in most other
countries where Internet access is cheap and almost universal, domain
names have also become part of
the lexicon and roadmap of everyday
life. One increasingly hears reference to a website (the domain name)
in addition to a phone
number. The appearance of domain names on the
sides of buses, in media advertisements and in correspondence is now so
frequent as
to be unremarkable. Most major Australian corporations have
domain names and use their websites to provide information to the
public,
to sell goods and services or to advertise a physical presence.
- There is little in the academic
literature about the development of DNS governance in Australia. There
have been press articles about
the delegation of the .au country code
and particularly about the transition from Elz[16]
to .auDA. There is much about intellectual property disputes or who has
the right to use a domain name; much about privacy, censorship
and the
use of on-line information; and much about network security but a
paucity of scholarly writing about DNS policy and its implementation
in
Australia.
- This article is a contribution
to analysis of the .au regime from a policy and regulatory perspective.
It examines the development
of policy for the management of the
Australian country code, the legislative basis for that management and
the practical co-regulatory
approach now in operation. It briefly
examines the way in which those three aspects parallel international
practices for self-regulatory
models in general and with ICANN[17]
principles in particular.
- The industry has, over the last
five years, experienced immense change. Those changes include a
technology boom and subsequent bust,
a change in personalities and
focus, a commoditisation of domain names[18]
the normalisation of online demographics and a contraction of
speculative online activity which absorbed enormous amounts of venture
capital but delivered little profit. At the same time the need for new
Internet addresses exploded as various common devices, including
mobile
phones, household appliances and motor vehicles can be connected to the
Internet.
- It is important to frame the
market context of the Internet in Australia. Again, we focus here on
the usage of the underlying technical
resources that enable the broader
Internet to function effectively. O'Donnell's[19]
work on mapping money flows around the Internet is useful but his
definition of the Internet is limited to the application and network
providers such as ISPs and backbone suppliers.
- More useful here is an
understanding of the money and influence flows around the domain name
industry itself and the impact that the
regulation of the network layer
has on the way in which the industry operates commercially.
- Internationally, the market
context for this academic work is framed by the domain name industry's
rapid maturity through the 1990s
and the broader dot com boom which
drove share prices for online companies to stratospheric heights before
a sustained crash in late
1999 and through 2000.[20]
- Domestically, there was a
significant push towards making the .au space more commercial in its
operation and more transparent in its
regulatory management. During
this time, the .au management was re-delegated to the Australian
Government[21]
endorsed self-regulatory body, .auDA.[22] The policy and
political significance of the re-delegation of the .au country code is
also found here.
The most recent statistics
for the .au registry are provided below.
They give a snapshot of how many .au names are registered, in which
parts of the domain.
The auDA generic names auction is also a useful
benchmark of both the popularity and utility of domain names in the .au
space.[23] Quoting .auDA's
1 October 2002 press release on generic names, "1,612 generic names
were allocated, either to a single eligible applicant
or at auction.
The highest price paid for a generic name was $153,000 for
flowers.com.au. The median auction price was $2,900. Most
names were
allocated for the minimum reserve price of $100. The process raised
approximately $2,611,000 in total ...".
- In very bald and unscientific
terms, one could read these windfall figures as equating to
approximately 10% of the total cost of current
.au registrations. This
assumes that there are approximately 300,000 names in the .au registry
and that registrars charge approximately
$100 for a two year
registration.
- Broader statistics on Internet
usage and penetration can be found in a variety of sources.[24] Most notable is that the
Australian DNRI is itself developing rapidly, This follows the
international trend where domain name registrations
have become very
price sensitive, commodity items. The use of the Internet as an
information resource, as a mechanism for making
consumer purchases and
as a branding tool has grown significantly in the last five years, in
spite of the significant economic downturn.
This means that the
development of mechanisms to properly manage and regulate the
underlying network resources has moved from the
realm of a desirable
public policy objective to a critical infrastructure question which
must be addressed in a sophisticated and
robust manner.
- The Internet in Australia is
approaching the ubiquity and importance of the telephone. The
sophistication of telecommunications regulation
compared to that of the
governance of Internet architecture illustrates significant progress
has been made but that Australia still
has some way to go.
- Historic Australian Network
Information Centre (AUNIC) data can be found at http://www.aunic.net/changes.html.
As an indication of growth in the .au space, in 2001 there were
approximately 257,000 names in the registry. That equates to 229,339
in
.com.au, 17,383 in .org.au and 7,841 in .net.au. The most up to date
figures for .au can now be found at http://www.ausregistry.com.au/reports/index.php.
2003 figures show that there 316,526
names in the registry which is distributed as 283,574 in .com.au,
11,498 in .org.au and 16,508
in .net.au.[25]
- The disarray and disappointment
of previous attempts at self-regulation[27]
restrictive domain name registration policies and the demand from the
competition regulator that yet another monopoly be broken,
have
resulted in a structure which, it could be argued, is heading in the
right direction.
- Prior to the introduction of
competition in the domain name registration industry, domain names
could only be registered by Robert
Elz and then, in the case of
.com.au, by MelbourneIT. As in any monopoly, prices remained high and
services to end-users relatively
limited. The drop in prices for domain
names and the vast variety of other services now available such as
web-hosting and ISP services
are indicative of some of the impact of
competition in this industry sector not dissimilar to that experienced
in the telecommunications
industry.
- Indicators of regulatory
success by .auDA include the respect of those subject to regulation,
that the industry participates actively
in regulatory decision making
and tolerates the outcomes. Elz made much of the necessity for support
from the diverse Internet community
(which was never properly defined)
and, in the transition phase, argued that .auDA did not have the
support of that group. The construction
of effective measures to
incorporate the views of the broader user/consumer community is a
positive sign illustrated by the development
and successful operation
of a number of .auDA policy panels which are constituted from a wide
range of interest groups. More broadly,
compliance with legislative
requirements such as the Corporations Law and the Trade Practices Act
is now apparently accepted. Perhaps
less well defined is a commitment
to the principles of openness and transparency of decision making which
have guided Internet governance
at an international level and which are
intrinsic to the way in which ICANN is meant to operate. Whether those
two principles actually
make for better decisions, more efficient
governance and more effective management remains moot.
- Prior to the formation of .auDA
and the formalisation of self-regulatory structures with clear rules
and objectives, there was little
formal governance of the DNS in
Australia. That is not to say that there wasn't a clear commitment by
knowledgeable and very enthusiastic
volunteers to the work of ensuring
that Australia's part of the Internet architecture worked effectively.[28] As mentioned above, Robert Elz was
the delegate responsible for the IANA[29]
functions in Australia and worked with others on what became AARNet,
linking universities and research bodies.
- Elz' trusteeship of the DNS for
.au space, in particular his development and administration of policy
for .au domain name registration,
was not the result of appointment by
the Commonwealth Government or by Australia's (then) monopoly
telecommunications carrier. Instead,
as in other countries,
responsibility reflected the delegation from one wizard[30]
to another in a network managed by a small group of engineers, often
with close personal links, but with no commercial interests
in what
they were doing.
- A comprehensive public policy
framework does not underpin delegation of the management of country
codes. Indeed, ccTLD delegation
predates by several years the
publication of the key Request for Comment (RFC) on ccTLD delegations[31]. Equally important, given the
shape of the early Internet, is that regulatory arrangements such as
delegations were not reflected
in a publicly available suite of policy
statements, such as rules about .au name allocation and resolution of
disagreements with
the trustee.[32]
- Uptake of the Internet by
Australian government agencies, businesses, educational institutions,
other organisations and individuals
placed significant pressure on Elz
and those volunteers to whom he had delegated responsibility for other
2LDs. That pressure was
quantitative (handling ever-increasing numbers
of registration requests) and qualitative (responding to criticisms
about delays in
processing requests for registrations or the perceived
absence of comprehensive policy statements attuned to commercial
realities
as the dot com boom gathered pace).
Both the pressure and the criticism were reflected in increasing
attention from the Commonwealth
Government and from business and
community groups such as the Internet Industry Association (IIA) and
the Internet Society's Australian
chapter (ISOC-AU).[33]
- During the early development of
new regulatory arrangements, there is great opportunity for
personalities (either individual or corporate)
to exert enormous
influence over the regulatory agenda. This has certainly been the case
in Australia.
Until the processes for objective
regulatory management are in place,
there is an influence transition or drift from one system to the next.
Australia and the .au
space are now at a point where the objective
criteria for full range of regulatory functions are established.
- During the Elz years, however,
arrangements were made on a "rough consensus and running code" basis
that meant very little to those
outside the technical community within
research institutions. This phenomenon is not particularly noteworthy,
in a negative sense,
as it reflected the situation of the general
management of the technical functions of Internet architecture until
the early 1990s
when the possibility for the commercialisation of
Internet resources became a reality.
- At the ICANN level, delegations
for the management of country codes take up much of the resources of
ICANN/IANA. Delegation arrangements
are a major source of angst as it
is perceived, in many quarters, that the management of the country code
is a source of national
honour, cash and control of a national asset.[34]
- In Australia's case, ICANN was
motivated to provide as much assistance as possible to resolve the
issue because, in part, it needed
to have the country codes inside the
ICANN "tent". Australia was the first country code administrator to
sign a contract with ICANN
under the country code arrangements. In
turn, Australia required the support of ICANN/IANA to break the
deadlock between Elz and
the Commonwealth to formally transfer the
management of .au to the formally recognised .auDA organisation.
- The Minister of Communications,
Information Technology and the Arts[35]
is responsible for the direction of DNS policy in Australia. The
Minister retains the right, under the 2000 amendment to the 1997
Telecommunications Act to effect regulatory arrangements for DNS
management.
- Even though Australia's
Internet governance arrangements are, internationally, with ICANN under
Californian contract law, the Commonwealth
clearly maintains arm's
length authority over the .au space. That the Commonwealth has devolved
that authority to .auDA is evidence
that the shift from government
bureaucracy to a private sector model is now well underway.
- I have set out here a very
brief history of the management of the DNS in Australia. It focuses
particularly on the way in which it
has been managed as a technical
resource rather than what it has been used for or how it has driven
many other policy decisions such
as the development of on-line content
regulation, e-commerce standards or prohibitions on on-line gambling.
The Internet in Australia
mirrors the way in which the Internet evolved
in the USA. That AARNET developed the way in which it did is testimony
to the impact
of personalities on Internet governance. Those
personalities have now been brought into a more institutional-like
setting.
- The work of Sassen, Braithwaite
& Drahos and Arup has been particularly helpful in providing
literature to support the discussion
of the shift to a private sector,
self-regulatory model for Internet governance in Australia.
- Börzel &
Risse-Kappen have compiled diagrammatic representations of the 'realm
of governance' which can be usefully employed
to illustrate where the
.auDA model sits (Börzel & Risse-Kappen 2001: 3,9).
The diagram reproduced here would have .auDA
sitting near to the top
right hand corner. In their analysis, they argue that "private
self-regulation is often triggered by the
very lack of effective
international norms and rules".
The
Realm of Public-Private Partnerships[36]
Public regulation
no
involvement of private actors
Lobbying of public actors by private
actors
Consultation and Cooptation of private
actors
(e.g.
private actors as members
of
state delegation)
participation
of private actors in negotiating
systems
Co-Regulation
of public and private actors
(e.g. private
actors as negotiation partners)
joint
decision-making of public and private actors
Delegation
to private actors
(e.g.
standard-setting)
participation of
public actors
Private self-regulation
in
the shadow of hierarchy
(e.g. voluntary agreements)
involvement of public actors
Public Adoption of private
Regulation
output
control by public actors
Private self-regulation
(Purely private regimes)
no public involvement
<--
increasing
autonomy of private actors | increasing
autonomy of public actors -->
|
- It
is helpful to divert quickly
into more general discussions of regulatory models. The spectrum ranges
from completely public sector
government bureaucracies to completely
private sector arrangements with no intervention from governments.
.auDA, like its international
equivalent ICANN, is a regulatory hybrid
that approximates the co-regulatory model one finds in the Australian
telecommunications,
financial services or food standards industries. In
the DNS case, the Minister, in effect, retains the right to re-delegate
responsibility
for the management of the .au domain name space. Now
that the arrangements for this model have settled, it is unlikely this
power
would be used. However, in the early stages of the implementation
of .auDA much concern was expressed about the conditions under
which
the Minister could withdraw his support.
- The appointment of the two
Independent Directors to .auDA, one of whom was appointed Chairman of
the Board[37]
contributed greatly to a rapid increase in industry confidence that the
organisation could indeed deliver on its mandate.
There had
been an undercurrent of dissatisfaction, most regularly
expressed on the e-mail DNS list.[38] The list is not
moderated and provides an open forum for comment on any DNS management
issue in Australia. At its best, it is a mechanism
for hearing end-user
views and facilitating the transparency of .auDA's operations in a
practical, timely and responsible way. At
its worst, it has been a
repository of personal invective, captured by a vocal minority who
repeat their often unsubstantiated views
loudly and often.
- One measure of effectiveness of
the current arrangements could be that the Board, since the appointment
of the current Chief Executive
Officer and Chairman, has been very
stable. There have been no attempts to spill the Board or to force
resignations. There has not
been a major turnover of Directors and most
have sought second and sometimes third terms. At a Board level there is
strong degree
of cohesiveness and cooperation whilst also taking very
serious account of the work of the Policy Panels. It is interesting to
note
that the same situation exists at an international level within
ICANN.[39]
- The process for the withdrawal
of Ministerial support for .auDA would require, under the legislation,
the co-operation of both the
ACA and the ACCC.[40]
However, it is now unlikely that either regulatory agency would
exercise their power under the legislation. This is particularly
the
case whilst .auDA continues to develop new polices for future second
level domains, prepares to review its mandatory Registrar's
Code of
Practice and continues to actively involve a broad range of interest
groups in both its structure and decision making processes.
- With an understanding of the
broader research, a sense of the historical position, some knowledge of
market statistics and some discussion
of regulatory models, we can now
turn to a more detailed examination of the operations of .auDA.
.auDA is a small organisation managed
by a Chief Executive Officer, a
Policy Officer and administrative staff. It is funded by contributions
from members, registrar fees
($11 per domain name registration),
registry fees and, most recently, by off-budget windfalls from the sale
of generic domain names.
It does not receive funding from government.
- It operates under the
Corporations Law and is managed by a Board of Directors (currently 13)
eleven of whom are elected by .auDA's
members[41]
and two of whom are appointed as Independent Directors.[42]
- A range of formal working
parties has assisted policy development. Members of those parties serve
on a voluntary basis. As such, the
cost of regulation has been
successfully transferred from government to those subject to the
regulation in a similar way, for example,
to the work of the Australian
Communications Industry Forum (ACIF) which develops codes of practice
for the telecommunications sector.
Membership of .auDA's policy panels
is representative of the broader community with skills in information
technology and engineering,
telecommunications policy, intellectual
property protection and consumer advocacy. The Registrar's Code of
Practice is a case in
point.[43]
- The activity of the working
parties is publicised by .auDA through public forums and the online
membership list. The working parties
typically seek community
submissions, for example, on appropriate competition models or names
policy. Exposure drafts are released
after regular physical meetings of
the panels. These are refined after further public consultation and
input. The documentation is
made public on the .auDA website and
remains posted.[44]
The use of working parties and policy panels reflects a commitment to
consensus policymaking and inclusiveness. It also ensures that
policy
development is delivered from the community to .auDA. This achieves
three objectives. It obviates the need for a large secretariat,
it
pushes the cost of regulation to the private sector and it ensures
comprehensive compliance.
.auDA's legitimacy has not been successfully
contested.[45]
- As outlined above, .auDA is
supported by Commonwealth legislation but its operation is independent
of government agencies. It is well
recognised by ICANN staff and by the
various ICANN constituencies in which Australians are active. Its
authority ultimately rests
on its ongoing effectiveness as a ccTLD
manager which is demonstrated by the development of codes of practice,
consensus-based policy
and the input of a range of stakeholders.
Objective management of the views of all stakeholders is critical. This
objectivity is
borne out in a policy environment which actively seeks
to facilitate competition, which bolsters a robust internet services
industry
at both the registrar and reseller level. Operational
objectivity is closely matched to international standards especially
with respect
to public consultation and consensus-driven policy and
including a broader range of talents and skills including legal,
policy, regulatory
and commercial experience.
- As a result, the regulatory
load of DNS governance in Australia is spread across representatives
from peak associations, registrars,
the technical community and
individual members. Regulatory capture is difficult to achieve and
clearer business rules mean that investment
decisions can be made in a
relatively stable economic environment.
- If the DNS had remained a pure
technical numbering resource, it is unlikely that the discussion of
Internet governance would have
created any traction in political and
policy circles. The numbering system has been subsumed by discussions
of naming policy and
domain name usage rights. This is termed IP versus
IP(r) elsewhere in the research and applies equally in Australia as it
does internationally.
The control of the naming system is a critical
policy discussion. It is critical at the infrastructure layer; critical
to users who
rely on Internet resources for their businesses; critical
to the consumer advocacy community as they discuss equitable access to
the Internet and critical to those who wish to protect their brands and
trademarks. The tension between the political camps is obvious.
With
commercial importance comes the discussion of policy and then the
enactment of mechanisms to govern fairly to distribute commercial
advantage equitably.
- The evolution of the .au
regulatory space continues in both a domestic and international
context. The most significant changes forecast
for the .au space are a
review of existing policies and the introduction of new second level
domains. The latter is being considered
during 2003 by a newly
constituted policy panel.
- The .auDA has reached a level
of maturity which makes it unlikely that the Minister would find any
justification for the forced re-delegation
of authority from .auDA to
any other organisation. The legislative and regulatory basis for the
management of the .au DNS is stable
with a small, solid administrative
body running the policy functions and regulatory arm of the .au domain.
- The paradigm shift is, with
some hindsight, obvious. Significant regulatory changes have been
produced by economic conditions in a
technology boom, comprehensive
broadband rollout which facilitates efficient Internet access, a highly
educated and demanding set
of consumers coupled with active government
engagement across the spectrum of domestic and international policy
debates. Considering
these changes in the broader context of the
globalisation of regulation and the development of a new regulatory
economy, it is clear
that the Australian experience will do much to
inform the development of hybrid regulatory structures to manage DNS
governance in
other countries.
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[1] "The Domain Name
System (DNS) is an Internet service that translates domain names into
IP addresses. Because domain names are alphabetic,
they're easier to
remember. The Internet however, is really based on IP addresses. Every
time you use a domain name, therefore, a
DNS service must translate the
name into the corresponding IP address. For example, the domain name www.example.com
might translate to 198.105.232.4. The DNS system is, in fact, its own
network. If one DNS server doesn't know how to translate a
particular
domain name, it asks another one, and so on, until the correct IP
address is returned." http://www.webopedia.com/TERM/D/DNS.html
[2] Whilst I have used
the common 'country code' top level domain (ccTLD) throughout the text,
the term 'geographic' top level domain
better defines the difference
between those two letter characters which are used to identify
countries and those which are used to
identify generic top level
domains (gTLDs) such as .com, .net and .org. The term country code is
not particularly accurate when some
country codes are used for
territories, for example, in the case of .cx for Christmas Island or
when some have been re-purposed for
completely commercial use, for
example, in the case of .tv or when the control of a country code has
been ceded, for example, in
the case of .nu, to entities with no real
connection to the country. The IANA website holds the definitive list
of geographic top
level domains at http://www.iana.org.
[3] Kleinwachter 2000:
559.
[4] Elz's contribution
to Internet governance in Australia is considerable. See http://www.networksorcery.com/enp/authors/ElzRobert.htm
for his technical work. Recognition of Elz by ICANN is at http://www.cyber.law.harvard.edu/icann/montevideo/archive/res/elz.html.
Some anecdotal information is at http://www.peterpoole.info/files/ping.html
and more formal treatment is at http://www.lib.unimelb.edu.au/collections/media/internet.ppt.
[5] .net.au was
managed by connect.com
(http:www.connect.com.au).
The Age article at http://www.theage.com.au/articles/2002/07/06/1025667076935.html
highlights the transition to a competitive market place.
[6] The 2LD, managed
by the Commonwealth Scientific & Industrial Research
Organisation (CSIRO), which is used to identify its national
network of
laboratories and other entities. http://www.csiro.au.
[7] Geoff Huston's
considerable body of work can be found at http://www.potaroo.net/papers.html.
Most interesting is the 1996 reference to the Internet in Australia and
other work in the RFC series.
[8] http://www.auda.org.au/register/.
Inactive 2LDs of historical interest include .telememo.au, otc.au and
gw.au.
[9] The rules are
found in full at http://www.iana.org.
In addition, IANA reports on the process for the .au re-delegation are
found at http://www.iana.org/reports/au-report-19nov01.htm.
[10] See, for
example, http://www.iana.org/reports/
and more recent reports on .ky, .pw and .tj at http://www.icann.org.
[11] The
applications for accreditation as an .au registrar were assessed on a
series of objective criteria such as technical capability
and financial
capacity. Registrars must abide by a series of contractual obligations
and must comply with the mandatory Registrar's
Code of Practice.
[12] The tender
documentation is found at http://www.auda/prg/ai/about/news/2001102201.html.
Five companies - from Australia and overseas - submitted bids to
provide registry services. The AusRegistry tender and the subsequent
contract to provide registry services have clearly articulated
policies, rules and service quality standards. This has improved the
integrity of the data in the registry, secured that data, increased
technical reliability standards and, most importantly, underpins
the
legitimacy of the management of the .au space by .auDA.
[13] An indication
of competition as of February 2003 is provided in the price comparison
at http://www.whatsinaname.com.au/,
with registrations from some registrars priced at around 50% of those
from their competitors.
[14] NOIE's website
is found at http://www.noie.gov.au.
Arguments about the scarcity of domain names have served two purposes,
to drive the price of domain names up and to invoke fear within
the
commercial community that their name may not be available, thus
encouraging defensive registration strategies. Further discussion
of
the purported scarcity of names is found at http://www.tbm.tudelft.nl/webstaf/henrikr/MaastrichtPaper.pdf.
[15] These are
identified at http://www.auda.org.au/registrars.
[16] Interesting and
quite emotional commentary can be found at http://www.auda.org.au/list/dns/archive/112001/0073.html.
Other background material can be found at http://www.auda.org.au/list/dns/archive/112001/0031.html,
http://www.auda.org.au/list/dns/archive/112001/0063.html
and http://www.lib.unimelb.edu.au/collections/media/internet.ppt
[17] It is worth
reading the early Memorandum of Understanding between the DoC and ICANN
in the context of regulatory arrangements which
developed in Australia.
See Section F - Supplementary Material - at the back of the document.
[18] This trend is
principally evident in a great reduction in the price of domain names
and the widespread acquisition of .au names by
businesses,
non-commercial entities and individuals.
[19] O'Donnell,
2002.
[20] Comprehensive
global data on the numbers of domain names at the gTLD level, the
number and ranking of registrars and the allocation
of market share can
be found at State of the Domain (http://www.sotd.info).
[21] The Department
of Communications, Information Technology and the Arts (DCITA) has
official policy responsibility for the oversight
of electronic
addressing in Australia. The policy is given effect through bodies such
as the National Office for the Information
Economy (NOIE) and
Australian Communications Authority (ACA). The Commonwealth
Government's view is expressed at http://www.dcita.gov.au/Article/0,,0_1-2_3-4_107024,00.html.
A perspective on ccTLD re-delegation is provided by
Hagen and von Arx, in their "Patriation of the .ca" article. Further
work on
the role of ccTLD managers and their interactions with
governments is taking place within the framework of ICANN's proposed
ccNSO
(http://www.icann.org/general/support-orgs.htm)
and within the ITU (http://www.itu.int/ITU-T/worksem/cctld/index.html).
[22] The .au Domain
Administration's website (www.auda.org)
holds a comprehensive listing of policies, procedures, Board minutes
and correspondence, regulatory codes and consumer information.
"A domain name (or web address) is a means of
identifying and locating an organisation or other entity on the
Internet. Domain names,
like telephone numbering, are a scarce resource
which need to be managed to ensure the efficient allocation of web
addresses. au
Domain Administration Ltd (auDA) is responsible for the
management and registration of domain names in Australia. The
Australian
Government, through the National Office for the Information
Economy (NOIE), maintains a cooperative relationship with auDA, and has
observer status on the auDA Board, however does not obstruct in auDA's
function as a not-for-profit, industry self-regulatory body."
More
information can be found at http://www.noie.gov.au/projects/international/index.htm.
A copy of the Minister's formal endorsement of .auDA can be found at http://www.auda.org.au/docs/Endorse_Letter_Final.html.
[23] http://www.auda.org.au/about/news/2002100102.html
[24] Figures on
uptake of the Internet by Australian households and businesses
(including basic connectivity, hosts per capita, frequency
of online
sessions and aggregate hours online) are available on the Australian
Bureau of Statistics site at http://www.abs.gov.au. For
international comparisons see the ITU 2001 ICT figures at http://www.itu.int/ITU-D/ict/statistics/at_glance/Internet01.pdf
and the OECD 2002 Measuring The Information Economy study at http://www.oecd.org/EN/document/0,,EN-document-29-nodirectorate-no-1-35663-29,00.html.
[25] These figures
are drawn from the (former) AUNIC registry and from data supplied by
AusRegistry (http://www.ausregistry.com.au),
concentrating on the major 'commercial' 2LDs.
[26] Zittrain, in
his review of Mueller's Ruling the Root, echoes Dave Clark in referring
to "rough consensus and running code" (2002:
1) by way of explanation
for the manner in which, in the early days, the computing scientists
ran the DNS.
[27] The .auDA
website holds archived information at http://www.auda.org.au/archive/adna.
[28] MelbourneIT's
Chief Technology Officer, Bruce Tonkin, provides some interesting
commentary on 'volunteerism' at http://www.auda.org.au/list/dns/archive/112001/0132.html
[29] A full list of
the functions of the Internet Assigned Names Authority is found at http://www.iana.org/.
The most important of the IANA functions is to ensure that the country
code top level domains are managed in a robust and consistent
manner
around the world. This includes ensuring that the country
administrators conduct themselves effectively...delegations,
and the tensions surrounding re-delegations are critical. Close
relationship to ICANN and policy functions.
[30] The term
"wizard" was popularised by Hafner and Lyon's in their 1996 book.
[31] The full range
of RFCs can be found at http://www.rfc-editor.org/overview.html
and includes the treatment of the distributed management to trusted
individuals of portions of Internet architecture including the
.au
country code.
[32] It is, perhaps,
interesting to note that disputes about name allocation became much
more prevalent when the use of domain names moved
from an easy way of
resolving the limitations of a number string to considerations of
intellectual property protection. Not surprisingly,
the 'first in,
first served' rule did not satisfy those who perceived they deserved
preferential treatment in the allocation of rights
to use a domain
name, especially if a domain name was the same as a recognisable brand
or trademark used in the off-line environment.
[33] Background is
provided in the discussion of ADNA and the Dot-Au Working Group in The
Road To Self-Regulation - The Australian Experience,
a 2002 NOIE paper
at http://inet2002.org/CD-ROM/lu65rw2n/papers/g03-a.htm,
and in the auDA & the dot-au space profile at http://www.caslon.com.au/audaprofile.htm.
A history of ISOC-AU features on that organisation's site at http://www.isoc-au.org.au,
complemented by the discussion of 'legitimacy' in Werle &
Leib's 1999 The Internet Society and its Struggle for Recognition
and
Influence.
[34] This is
certainly the case in small Pacific Island nations and in the
developing economies of Vietnam, Cambodia and Laos.
[35] Senator Richard
Alston has been the Minister for Communications since March 1996 and is
the longest serving Federal Minister for
Communications. He was Shadow
Minister for Communications from 1989 to 1996.
[36] Reproduced by
permission of the authors.
[37] Tony Staley is
a former Federal Minister of Communications, former Federal Director of
the Liberal Party of Australia and close confidante
of the current
Minister for Communications, Richard Alston. Some concise background is
found at http://www.pm.gov.au/news/speeches/1999/staley0307.htm
[38] The DNS list is
open to the public with, at December 2002, about 350 subscribers. Like
most on-line lists, there is a core of around
20 subscribers. Like many
such lists, it is noted for the vehemence and passion with which views
are expressed rather than their
cogency or any reflection of a broader
community view. The personal invective sometimes found on the list has
been the source of
some unhelpful destabilisation of the work of .auDA.
It could also be argued that the "robust" character of the DNS list has
dissuaded
people from participating for fear that their e-mail in-boxes
will be flooded with off topic raves from those with personal agendas.
Recently, the list has undergone some changes and is now moderated to
keep the debate on topic.
http://www.auda.org.au/list/dns/archive/122000/0016.html.
This reference gives a slightly different slant on 'independent',
'consensus' and 'mandate' and is a balance to more positive coverage
of
.auDA's operations.
[39] Bret Fausett's
website (http://www.lextext.com/icann/),
ICANNWatch (for example contributions by Michael Froomkin at http://www.icannwatch.org)
and online intervention by ICANN At Large Director Karl Auerbach (http://www.cavebear.com)
are noteworthy. Whilst these websites receive press coverage, it is
hard to measure whether they have changed the way in which ICANN
has
developed its processes or policy procedures or how ICANN Board
decisions are made.
[40] The ACCC's
submission to WIPO's discussion of domain name registration neatly sets
out the competition regulator's responsibility
for and interest in
.auDA's activities. Note however that the focus of the submission is on
intellectual property protection rather
than the governance of Internet
architecture and resources. http://www.accc.gov.au/ecomm/access1b.htm
[41] Membership is
open to Australian organisations and individuals (details at http://www.auda.org.au)
with voting in staggered Board elections across three membership
categories. This prevents Board capture by special interest groups.
As
at December 2002, .auDA had approximately 380 members - a similar
number to ISOC-AU - including individuals, small businesses,
consumer
advocates and corporate interests. However, in compliance with the
Australian Privacy Act, detailed demographics are not
publicly
available. Profiles of Board candidates published during elections
suggest that candidates and, as importantly, those actually
elected,
are not restricted to major corporate interests of areas of expertise
such as information technology and law.
[42] Currently the
independent directors are former ICANN Board member Greg Crew (http://www.icann.org/biog/crew.htm)
and Chair Tony Staley. The independent directors are paid for their
work; the elected directors are not.
[43] The final
version of the mandatory Code of Practice can be found at http://www.auda.org.au/docs/auda-2002-26.pdf.
I was Chair of the Registrar's Code of Practice Committee, the
membership of which was drawn from a broad spectrum of industry and
consumer organisations.
[44] The
transparency of .auDA's operation (through public forums, through
online publication and through encouragement of participation
in its
working parties) has been little remarked. It is of interest in
comparison to the operation of other regulatory bodies, where
participation is difficult (for example, restricted to a particular
community) and where observers have access to outcomes rather
than the
deliberations that led to those outcomes.
[45] In contrast to
ICANN it has not faced sustained criticism in legal, information
technology or other publications and, overall, has
secured the
endorsement of bodies such as the Internet Industry Association,
Australian Competition & Consumer Commission and
ISOC-AU. 'Anti
.auDA' groups, such as the DNS Action Group, do not appear to have a
major following and proposals for an .auDA Watch
site apparently did
not eventuate. Like the anti-ICANN commentators, it is difficult to
measure the effectiveness of these groups
on changing policy outcomes.
In addition, the list has been discredited by the use of pseudonymous
members who may have been one
person, posing as several different
characters. In addition, the personal invective found on the DNS List
discouraged active participation
from a diversity of stakeholders as,
in many cases, people were unwilling to manage a large volume of
off-topic email.
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