[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
EXPANSION OF TOP LEVEL DOMAINS AND ITS EFFECT ON COMPETITION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS AND
COMPETITION POLICY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 23, 2009
__________
Serial No. 111-70
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Courts and Competition Policy
HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chairman
JOHN CONYERS, Jr., Michigan HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia JASON CHAFFETZ, Utah
ROBERT WEXLER, Florida BOB GOODLATTE, Virginia
CHARLES A. GONZALEZ, Texas F. JAMES SENSENBRENNER, Jr.,
SHEILA JACKSON LEE, Texas Wisconsin
MELVIN L. WATT, North Carolina DARRELL ISSA, California
BRAD SHERMAN, California GREGG HARPER, Mississippi
MIKE QUIGLEY, Illinois
Christal Sheppard, Chief Counsel
Blaine Merritt, Minority Counsel
C O N T E N T S
----------
SEPTEMBER 23, 2009
Page
OPENING STATEMENTS
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
Congress from the State of Georgia, and Chairman, Subcommittee
on Courts and Competition Policy............................... 1
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Ranking Member, Subcommittee on
Courts and Competition Policy.................................. 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on Courts and Competition
Policy......................................................... 22
The Honorable Jason Chaffetz, a Representative in Congress from
the State of Utah, and Member, Subcommittee on Courts and
Competition Policy............................................. 22
WITNESSES
Mr. Doug Brent, Chief Operating Officer, Internet Corporation for
Assigned Names and Numbers (ICANN), Washington, DC
Oral Testimony................................................. 24
Prepared Statement............................................. 26
Mr. Richard Heath, President, International Trademark Association
(INTA), New York, NY
Oral Testimony................................................. 40
Prepared Statement............................................. 42
Mr. Paul Stahura, Chief Executive Officer, President, eNOM,
Bellevue, WA
Oral Testimony................................................. 69
Prepared Statement............................................. 72
Mr. Steve DelBianco, Executive Director, NetChoice, Washington,
DC
Oral Testimony................................................. 101
Prepared Statement............................................. 103
APPENDIX
Material Submitted for the Hearing Record........................ 131
EXPANSION OF TOP LEVEL DOMAINS AND ITS EFFECT ON COMPETITION
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WEDNESDAY, SEPTEMBER 23, 2009
House of Representatives,
Subcommittee on Courts and
Competition Policy
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:04 a.m., in
room 2141, Rayburn House Office Building, the Honorable Henry
C. ``Hank'' Johnson, Jr. (Chairman of the Subcommittee)
presiding.
Present: Representatives Johnson, Conyers, Boucher,
Quigley, Coble, Chaffetz, Sensenbrenner, Goodlatte, and Harper.
Staff present: (Majority) Christal Sheppard, Subcommittee
Chief Counsel; Eric Garduno, Counsel; Rosalind Jackson,
Professional Staff Member; (Minority) Sean McLaughlin, Chief of
Staff and General Counsel; and David Whitney, Counsel.
Mr. Johnson. This hearing of the Subcommittee on Courts and
Competition Policy will now come to order. Without objection,
the Chair will be authorized to declare a recess of the
hearing.
And, ladies and gentlemen, good morning. I would like to
welcome everyone to this hearing and offer my thanks to the
panel members for being here with us.
We meet today to discuss an important topic which has the
potential to significantly impact consumers and trademark
owners who use the Internet. In this hearing, we will address
two main issues. The first is the proposal by ICANN that would
allow an unlimited expansion of the top-level domain names. The
second is the potential separation of ICANN into a fully
independent entity.
As for the expansion of GTLDs, the heart of this matter is
an uncertainty of how these actions would affect competition
and the rights of trademark owners who spend sizable sums and
dedicate countless employee hours protecting their trademarks
from cybersquatters. When ICANN revealed their expansion plans,
a tremendous public outcry came from trademark owners, worried
about the infinite cybersquatting possibilities for which this
plan may allow.
Through an ad hoc advisory body, ICANN has proposed certain
trademark protections to assuage the trademark owners'
concerns. However, such measures have not been formally
adopted. And even if they were, some trademark owners feel such
measures are not enough. And I know I butchered that word,
``assuage.''
Nevertheless, there is clearly some interest out there in
expanding GTLDs beyond just cybersquatters and the pecuniary
interest of registries and companies hoping to be registries.
I note that entities like New York City and Al Gore's
Alliance for Climate Protection are interested in securing
domains like .nyc and .eco, respectively. I also note that the
expansion of GTLDs will allow non-Roman script characters to be
used in GTLDs. These efforts seem meritorious to me.
However, what I don't understand is why ICANN is so
committed to an unlimited expansion of GTLDs. Perhaps the ICANN
witness can illuminate this for us.
The second main issue addressed here today is the potential
separation of ICANN into a fully independent entity. Since its
inception, ICANN has been tied to the U.S. Department of
Commerce through a series of memorandum of understandings and
now through a joint project agreement. The impact of this union
instilled in ICANN transparency standards and has provided
privacy and security policies for domain name registrants.
However, this union is set to expire on September the 30th
of this year, and I do not believe that a continued
relationship is necessary--excuse me, I do believe that a
continued relationship is necessary to ensure transparency and
pro-consumer benefits, especially as the expansion of GTLDs
proceeds.
I fully support renegotiation of the agreement. However,
should ICANN decide not to continue in an agreement, I and the
American public would need assurances of ICANN's dedication to
maintaining transparency, privacy and security that is crucial
to protecting consumers and trademark owners, as well as
marketplace competition.
Again, I thank the panel members for your testimony today
and look forward to a lively discussion.
I now recognize our Ranking minority Member, Lamar Smith,
for an opening statement.
I am sorry. Mr. Smith is not here. So Mr. Coble is the
Ranking Member I will recognize for his opening statement.
Mr. Coble. Thank you, Mr. Chairman. I was going to say, Mr.
Smith has become invisible. I didn't see him up on the panel
here.
Good to have you all with us.
And thank you, Mr. Chairman, for calling the hearing.
In the 108th Congress, the predecessor of the
Subcommittee--on this Subcommittee conducted much needed
oversight over the Internet Corporation for Assigned Names and
Numbers, ICANN, and the United States Department of Commerce.
As a result, the Commerce Department for the first time
included in its agreement with ICANN a series of requirements
to report on and improve the accuracy of the WHOIS database.
The accuracy of this database is critical to law
enforcement, intellectual property owners, and the public who
deserve truthful information about the identity of those who
register a domain name. The then-chairman of the Subcommittee,
Ranking Member Lamar Smith, also authored the Fraudulent Online
Identity Sanctions Act, which the Congress enacted.
This law provides serious civil and criminal penalties when
someone willfully provides false domain name contact
information in furtherance of a Federal crime or in violation
of a federally protected intellectual property right.
Notwithstanding this progress, ICANN confronts a number of
key opportunities and challenges today. Several of these are
referenced in a letter Ranking Member Smith and I sent to Rod
Beckstrom, the new president and CEO of ICANN, on September the
15.
Without objection, Mr. Chairman, I ask that our letter and
Mr. Beckstrom's response be placed in the hearing record.
Mr. Johnson. Without objection.
[The information referred to follows:]
----------
Mr. Coble. In a few minutes, we will receive testimony from
the chief operating officer of ICANN and others with a
substantial interest in the policies the organization adopts
and the manner in which they are implemented.
It is difficult to overstate the impact of the Internet as
a transformative technology. ICANN bears a tremendous
responsibility in managing the technical aspects of the
Internet to ensure the public is able to quickly locate the
information they seek.
So, Mr. Chairman, I am not an engineer, nor am I a computer
scientist. It seems to me that the safety and stability of the
Internet must be the single most important focus of ICANN.
This past Friday, Mr. Chairman, I am told that an ICANN
contractor recommended the implementation of a vital new
security technology to protect consumers from fraud and cyber
crime instead of immediately moving forward with plans to roll
out an unlimited number of top-level domains. This
recommendation was in a report that ICANN's own government
advisory committee, GAC, noted in August was essential in
determining the appropriate timing and scope of an expansion of
top-level domains.
I might add, Mr. Chairman, that the GAC also expressed its
concern as to why the proper analysis did not occur earlier.
But unfortunately, this isn't the first time that ICANN appears
to have neglected sound advice or failed to execute what one
might think is a mandatory instruction.
In 2006, I am advised that ICANN's board of directors
called for a comprehensive economic study before determining
whether new top-level domains should be introduced. To date, I
understand that study has not been--has never been conducted.
Just last month, a high-ranking Commerce Department
official reiterated the need for such an objective study,
writing, ``We continue to believe that a threshold question,
whether the potential consumer benefits outweigh the potential
costs, has yet to be adequately addressed. NTIA continues to
urge ICANN to undertake a comprehensive economic study prior to
moving forward with the introduction of the new GTLDs, and we
share NTIA's perspective that the overreaching issue should be
resolved prior to new GTLDs having--being introduced.''
Mr. Chairman, I ask that this August 18, 2009, letter from
Laurence E. Strickling be made a part of the record.
Mr. Johnson. Without objection.
[The information referred to follows:]
__________
Mr. Coble. In closing, Mr. Chairman, I want to make a
couple of final points, if I may. First, I have a great concern
about what will follow an unprecedented rollout of unlimited
top-level domains in terms of increasing the risk to the public
of malicious behavior online, as well as imposing tremendous
new costs on companies, manufacturers, and service providers,
costs that, I might add, will be passed on to consumers in many
instances.
Secondly, I think there may be some who want to pit certain
constituencies within ICANN against one another. That is not
how I approach these issues, and I don't believe you do, Mr.
Chairman. What ICANN does affects every Internet user. The
processes they follow must be truly transparent and lead to
full accountability.
The quotes I cited earlier represent the views of the
United States government and the key organization within ICANN
and not private organizations. It is my hope, Mr. Chairman,
that ICANN will take seriously these views and move forward
with prudence and deliberation.
It is also my hope that this hearing signals a renewed
commitment on the part of this Subcommittee that we will
redouble our efforts in oversight in this area, which affects
every American consumer and business.
This concludes my opening remarks, Mr. Chairman, and I
yield back.
Mr. Johnson. Thank you, Mr. Ranking Member. And you and I
will certainly work together as we move forward on this very
important issue.
Are there any other Members who wish to make statements?
With no one having--okay, we have Chairman of the full
Committee, Mr. John Conyers, who is recognized.
Mr. Conyers. Thank you, Chairman and Ranking Member,
Members.
We have in Judiciary more hearings than any other
Committee, any other standing, or full Committee in the
Congress. So, one of my goals is to reduce the number of
hearings. And this is a hearing that we shouldn't have had to
call, because if the parties had come together, I doubt if we
would be here this morning.
And so, although I am in my usual good, jovial mood, I
mean, look, we have until September 30th when the joint
agreement expires. Everybody here knows everybody else, been
working with each other. But you guys made us come here today.
Here we are. We have a health care bill. We have troop increase
in Afghanistan. We have the economy going through the roof,
Congressional Black Caucus week, and here we are talking with
all of you about, can we meet the September 30th deadline?
Well, if you don't meet the 30th deadline, you are going to
all be sorry that you didn't make it, okay? So I have a lot of
other things to say, but I want to continue the nice mood of
the morning here and put the rest of my comments in the record.
And thank you, Mr. Chairman.
Mr. Johnson. Thank you, Mr. Chairman.
And I understand that my good friend, Congressman Chaffetz
from Utah, wishes to make a statement.
You are recognized, sir.
Mr. Chaffetz. Thank you, Mr. Chairman.
And I will be very brief. I do appreciate you calling this
hearing and appreciate you gentlemen for being here.
Among the issues that I hope we are able to address along
the way is just, how is this beneficial to competition?
Obviously, we want the world to be competitive, but there are
some negative things, unintended consequences that happen with,
perhaps, some of these actions that I hope were thoroughly
explored before we implement something new.
Of particular concern is what would happen to companies and
individuals, entrepreneurs and whatnot, who would need to
potentially engage in defensive registration. How is that
positive to the marketplace? Anything that happens that
exacerbates fraud online is obviously of deep concern. It is
used as such a tool in a positive way, but fraud is certainly
an ongoing concern.
And, finally, I will just mention, again, some of the key
areas that I would like to--and appreciate you addressing are,
of the 21 generic top-level domains, why the expansion from
there? Are we not meeting the market's needs with 21 of those?
And certainly, we have international demands, particularly
in markets that use non-English characters and whatnot, and
those need to be addressed, as well.
But I know you are aware of all those topics. I just want
you to be aware of it. Those are some of the issues, at least
from my perspective, that I would hope would be addressed, and
if not addressed in this Committee, then certainly in the
follow up.
But we appreciate your participation and your candor here
and look forward to a productive meeting.
Thank you, Mr. Chairman.
Mr. Johnson. Thank you, Mr. Chaffetz. Or Chaffetz. I am
sorry, Jason.
Mr. Chaffetz. Close enough.
Mr. Johnson. All right. Okay. Chaffetz. Okay.
Any other Members wish to make opening statements?
Without objection, other Members' opening statements will
be included in the record.
I am now pleased to introduce the witnesses for today's
hearing. Our first panelist is Mr. Doug Brent, chief operating
officer of the Internet Corporation for Assigned Names and
Numbers, ICANN. Mr. Brent has executive oversight of
operational services, including Internet assigned number
authority, and contracted parties such as registries and
registrars. He oversees policy development support, as well as
major product initiatives and international business operations
functions.
Thank you for coming, Mr. Brent.
Second will be Mr. Richard Heath, president of the
International Trademark Association. He is also vice president,
legal and global anti-counterfeiting council in the legal group
of Unilever PLC based in the United Kingdom. He served as head
of the Corporate Trademarks and General Trademark Council at
Unilever from 1996 to 2005, and he also served on INTA's board
of directors from 1999 to 2003.
Third panelist is Mr. Stahura, Mr. Paul Stahura, founder of
the registrar eNom and the chief strategy officer of Demand
Media, the social media company which acquired eNom in 2006.
ENom manages over 10 million domain names and connects Internet
users to Web sites more than 2 billion times daily. Mr. Stahura
has served for 8 years on the ICANN registrar constituency and
has been active on the ICANN WHOIS task force for over 4 years.
Welcome, sir.
Our fourth panelist is Mr. Steve DelBianco. Mr. DelBianco
is the executive director of NetChoice, which is a coalition of
trade associations and e-commerce businesses that include Time
Warner, News Corp., and Yahoo. He is a well-known expert on
Internet governance and online consumer protection and has
advocated for business interests at the Internet Governance
Forum and ICANN.
Thank you all. Thank you, sir. Thank you all for your
willingness to participate in today's hearing.
Without objection, your written statements will be placed
in the record. And we would ask that you limit your oral
remarks to 5 minutes. You will note that we have a lighting
system on your table that starts with a green light. At 4
minutes, it turns yellow, then red at 5 minutes. After each
witness has presented his or her testimony, Subcommittee
Members will be permitted to ask questions subject to the 5-
minute limit.
Mr. Brent, please proceed with your testimony.
TESTIMONY OF DOUG BRENT, CHIEF OPERATING OFFICER, INTERNET
CORPORATION FOR ASSIGNED NAMES AND NUMBERS (ICANN), WASHINGTON,
DC
Mr. Brent. Thank you, Mr. Chairman. Can you hear me okay?
Mr. Johnson. It seems like you probably need to cut that
mic on.
Mr. Brent. It is----
Mr. Johnson. It is on, okay? We can hear you much better.
Mr. Brent. Thank you very much.
Mr. Johnson. Thank you.
Mr. Brent. Mr. Chairman, Committee Members, thank you very
much for the opportunity to come and talk with you today. My
name is Doug Brent. I am chief operating officer of ICANN and
have the day-to-day responsibility for much of the work that is
under consideration by the Committee today.
The ICANN organization is just over 10 years old. We are a
bottom-up, multi-stakeholder entity that coordinates key
technical functions of the global Internet. We were born from
the United States government ``White Paper on the Management of
Internet Domain Names and Addresses'' and have benefited from
the assistance and support of the United States government
across three presidential Administrations.
ICANN stakeholders--many of whom are here today--range from
governments to individual Internet users to businesses from the
U.S. and around the globe.
I want to go directly to the concerns that I think are most
significant to the Committee today. As Members are aware,
ICANN's community is working to complete a process to bring
competition to top-level domains. TLDs--and we have lots of
acronyms in this world--TLDs, as they are known, are the part
of the domain name to the right of the dot. Common examples are
.org, .com, .net.
ICANN's work to increase competition is part of our
history. In 1998, there was one business that registered domain
names, and each name cost approximately $50 to register. ICANN
has fostered an environment where hundreds of companies were
created to register names, and the cost can be as low as $6 for
individual registrants.
But why apply this competitive mandate to new top-level
domains? Why expand now? What good will it bring?
Three reasons. First, the United States has encouraged
ICANN to consider and implement new TLDs since ICANN was
founded in 1998. It was part of the founding documents and part
of the agreement since.
Second, there is every reason to believe that the benefits
offered by competition for virtually every other market also
apply to TLDs. New TLDs don't just mean more .coms, but the
opportunity for real innovation in how names are used to the
general benefit of Internet users. Already, there are strong
and public campaigns for new names. Multiple parties have
expressed interest in .eco, with one supported by former Vice
President Al Gore, .basketball has been promoted by Shaquille
O'Neal, and there are proposals from all over the world, from
New York to Sydney to Paris, to have their communities
represented at the top level.
Third, there are about 1.6 billion online around the world.
Many of these Internet users aren't English-speakers, and their
number is growing. As the domain name system presently
operates, top-level domains can't be displayed in any character
set other than that used for English. To break through that
barrier, ICANN is working to introduce top-level domains in all
of the languages of the world.
Planning and thinking for new GTLDs has been going over a
decade. This has been a thorough process. Policy development
began in 2005 and took nearly 3 years of development from
community members--again, many here--including the intellectual
property constituency. The implementation planning has been
actively underway for more than 2 years, with numerous
opportunities for live participation, remote participation, and
formal written comments.
Importantly, the new GTLD work is not yet done. While
numerous hard issues have been resolved along the way, some
still remain. Intellectual property concerns are crucially
important to ICANN. Even ICANN's chair is an intellectual
property attorney. We have not and will not allow new TLD
expansion that does not appropriately protect trademark
holders.
Trademark holders want more tools for enforcement and
protection at the second level. So do we. In fact, we asked for
a team of intellectual property experts from all over the world
to provide advice on how protections could be strengthened. I
personally participated in that discussion, hundreds of hours
in the last 6 months, and recommendations are now being
actively considered.
In conclusion, ICANN did not casually think this plan up.
This will not be an unbridled expansion. It is the work of many
hands from a bottom-up process. There have been no fewer than
20 papers and submissions on the expansion of new GTLDs. In
just the last 12 months alone, there have been two versions of
the applicant guidebook, thousands of pages of commentary,
analysis, and revisions, with more to come.
There is more work ahead of us, and that work will be and
must be in the public interest. I thank Members for this
opportunity and look forward to answering questions you have
about ICANN.
[The prepared statement of Mr. Brent follows:]
Prepared Statement of Doug Brent
__________
Mr. Johnson. Thank you, Mr. Brent.
Mr. Heath?
TESTIMONY OF RICHARD HEATH, PRESIDENT, INTERNATIONAL TRADEMARK
ASSOCIATION (INTA), NEW YORK, NY
Mr. Heath. Thank you, Mr. Chairman. Can you all hear me?
Chairman Johnson, Ranking Member Coble, Chairman Conyers,
Members of the Subcommittee, thank you for the opportunity to
offer the perspective of trademark owners on the introduction
of new generic top-level domains, or GTLDs, to the Internet's
domain name system.
The International Trademark Association, or INTA, welcomes
this Subcommittee's oversight of this important issue and
appreciates initiatives such as this hearing and the September
15th letter from Representatives Smith and Coble that posed
several key questions to the Internet Corporation for Assigned
Names and Numbers, otherwise known as ICANN. INTA actively
participates within ICANN and contributes to its policy
development process.
Mr. Chairman, when a trademark is used as a domain name
without the trademark owner's consent, consumers can become
confused about the source of the goods and services being
offered on the Internet. This confusion tarnishes and harms
brands. It misleads consumers. And it results in decreased
confidence in the Internet as an instrument of legitimate
commerce.
For example, in 2009, a Get Safe Online study undertaken by
the British government found that 44 percent of small
businesses have been the victim of online crime. And most
alarmingly, the fear of online crime has deterred 14 percent of
all British citizens from using the Internet altogether. That
is a substantial number.
Abuse of the domain name system has been a problem since
the Internet was opened to commercial use, and the amount of
abuse is steadily increasing, and the harm to trademark owners
and consumers has been increasing, as well, both in scope and
in severity.
Despite the hard work of the ICANN board and its staff, Mr.
Chairman, we see significant increases in abuses of the domain
name system and inadequate management by ICANN to address the
problems, including their inability to enforce contracts.
The result in the current 21 GTLD space is at least the
following issues: an increase in consumer confusion and
decrease in confidence in the Internet; threats to public
health, safety and security through Web sites selling
counterfeit goods and services; propagation of malicious
software that spreads viruses, spam, and leads to identity
theft; tarnishment of brands and damage to the reputation of
legitimate businesses; and, last but by no means least, an
increase in business costs due defensive registrations,
Internet monitoring, and expensive legal actions to enforce
trademark rights, the costs of which are either passed on to
consumers or absorbed by businesses, making them less
competitive.
It is against this background that ICANN now plans to
introduce an unlimited number of new GTLDs, which will increase
the harm to businesses and consumers. So why introduce this
program of expansion at all?
The key argument we have just heard from ICANN offers
expanding the domain name space is the need to spur
competition, but ICANN cannot assume without empirical support
that simply adding unlimited GTLDs to a complex economic model
like the domain name system will necessarily increase
competition in a manner that best serves and improves public
welfare.
The critical issue for brand owners, consumers, and other
Internet users is to ensure that the introduction of any new
GTLDs is responsible, deliberate, and justified. We therefore
believe that, before any additional GTLDs are introduced, ICANN
should resolve what it has identified as the four overarching
issues, namely trademark protection, the potential for
malicious conduct, Internet security and stability, and top-
level domain demand and economic analysis.
With respect to trademark protection, ICANN's board did
create an implementation recommendation team--the IRT, as we
have heard--to address new protection mechanisms in the face of
a rollout of an unlimited number of GTLDs. The IRT, despite an
extremely tight deadline, proposed some useful recommendations
in its final report. But even if these recommendations are
adopted by ICANN, they are untested, and they may not be
adequate to address the unlimited expansion of new GTLDs
proposed by ICANN.
With respect to an economic analysis, ICANN, despite
asserting in its testimony, has yet to conduct an independent,
comprehensive economic study of the domain name marketplace.
INTA believes that ICANN should not implement any program for
the creation of new GTLDs without fully understanding the
beneficial and harmful effects of such actions on consumers,
competition and intellectual property rights.
INTA is strongly critical of the process undertaken to date
and of ICANN's decision to authorize an unlimited number of new
GTLDs without prior economic study and without adequate
protection for all Internet stakeholders.
As a result, we welcome the involvement of the Judiciary
Committee on this important matter, and we ask that the
Committee continue to work with ICANN, the Department of
Commerce, and others in Congress in developing sound policies
that protect the legitimate interests of the public.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Heath follows:]
Prepared Statement of Richard Heath
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
__________
Mr. Johnson. Thank you, Mr. Heath.
Mr. Stahura?
TESTIMONY OF PAUL STAHURA, CHIEF EXECUTIVE OFFICER, PRESIDENT,
eNOM, BELLEVUE, WA
Mr. Stahura. Good morning. And thank you for inviting me to
testify.
My name is Paul Stahura, and I am the founder of eNom, a
domain name registrar in Bellevue, Washington. Registrars sell
domain names that they get from registries.
I started eNom in my garage in 1997 before there was a
competition in the registrar business. After ICANN introduced
registrar competition, I was able to grow my business, and now
eNom is the second-largest registrar in the world. It powers
over 10 million domain names for consumers and businesses of
all sizes and connects Internet users to Web sites 2 billion
times a day. And I have been fighting for the last 12 years to
bring competition to registries.
I couldn't agree more with the following recent statement
of President Obama. ``My guiding principle is and always has
been that consumers do better when there is choice and
competition. That is how the market works.''
In my oral testimony today, I would like to make three
points. One, there is high consumer demand for many new GTLDs.
Two, there currently is little or no competition to satisfy
this demand. And, three, we shouldn't prohibit competition
because of trademark concerns. Instead, we should address these
concerns.
Firstly, regarding demand, when it comes to consumer
opinions and studies of economic demand, actions speak louder
than words. Actual consumer behavior that registrars like mine
see every day is more meaningful than a study. As Henry Ford
once said, ``If I asked my consumers what they wanted, they
would have said a faster horse.''
Name registrations worldwide are growing. And guess what?
They are growing faster in the smaller, newer TLDs than the
old, more established ones. This proves there is demand for
names in new TLDs.
Now, regarding competition, the biggest benefit these new
TLDs bring is competition, and, through competition, lower
prices, more choice, and more innovation for consumers. When
ICANN brought competition to registrars, the price was cut by
more than half. And today, consumers have over 100 choices as
to where they register domains and what services they get from
the registrar. Now is time--it is actually past time to bring
this competition to registries.
I want to talk about another kind of competition that TLDs
will promote, not competition among domain name industry
players, but competition among brand owners. Inter-brand
competition is also good for consumers, but established brands
don't like it.
For example, imagine if you built up a tremendous local
shoe business and your name was United Shoes. You may have a
trademark on the word ``United'' for shoes. It is your name,
but you cannot get united.com. United Airlines already has it.
United Van Lines and UnitedHealthcare cannot get it, either.
Most memorable, meaningful .com names with the word ``united''
in it are taken.
But with new TLDs, each business could get a valuable name.
You could get united.shoe, if ICANN made .shoe available. With
united.shoe, among other things, consumers would be generally
less confused about what this United does. Nike is probably
happy that United Airlines is forcing United Shoes from getting
united.com. Those established brands want those new brands to
be unable to get their exact matching .com, and they don't want
new TLDs, like .shoe.
Incumbent brands don't want to make it easy for new
entrants to brand their new products with names in appropriate,
meaningful TLDs. It is like the earlier, bigger companies got
all the picks and shovels to the Internet goldmine and the
smaller, newer companies that come later have to settle for a
toothpick and a spoon. Let's give them the same tools that the
big guys have.
Finally, regarding trademark concerns, the bottom line is,
trademark concerns with new GTLDs are being addressed through a
long and open process. For many years, government advisory
committee, intellectual property constituency, the IRT, with 18
intellectual property experts, the business constituency, the
GNSO, non-commercial users, ISPs, and many other groups have
been closely involved in this long process and have designed
rights protection mechanisms that will be very effective and go
far beyond what is currently in place in .com.
In conclusion, the U.S. government has a history of
allowing the Internet to flourish. The benefits to citizens
around the globe have been immeasurable. We should not depart
from this wise precedent now.
Thank you.
[The prepared statement of Mr. Stahura follows:]
Prepared Statement of Paul Stahura
__________
Mr. Johnson. Thank you, Mr. Stahura.
Mr. DelBianco?
TESTIMONY OF STEVE DELBIANCO, EXECUTIVE DIRECTOR, NETCHOICE,
WASHINGTON, DC
Mr. Delbianco. Good morning.
We are grateful to the Chairman and the Ranking Member for
asking the question today: Is ICANN in its drive for new top-
level domains really sticking with its mission and is it truly
being accountable to stakeholders?
So let me start the same way I did in my written testimony:
by apologizing to this Committee for dragging you into this
food fight happening in the ICANN community. If ICANN really
were accountable to the global stakeholders, we would have
worked this out in our own bottom-up consensus process. But we
got sidetracked along the road to new top-level domains.
First, a little bit of context here. The hearing is about--
it is really about labels. And I think all of you have seen one
of these before. It is a label maker. You punch in a label, hit
the button, and it spits out one of these tags.
And the thing about labels is, I can put them on anything.
I can put them on my Web page. I can put them on this
microphone, this table. I can put them on anything, and it
helps me to identify it, show what it is. But it also tells
others what it is. As Mark Twain once said, it is labels that
let you tell the difference between German wine and vinegar.
Advocates for new domains say that new labels are
absolutely necessary for innovation and growth. But hang on.
Every day, our industry and my members create new Web sites,
applications, and services, like Twitter for messaging or Bing,
the new search engine, and labels are just one of the ways that
people find these new services far more than use search engines
or links. The label is not the creation; it is just something
we stick on it.
Now, Paul's group wants ICANN to give him one of these, so
that he can make his own labels. I can't fault Paul for that.
Having your own label maker is like printing money, especially
if brands and banks have to buy labels to stop cybersquatting
and consumer fraud.
I think it is time for an example. We are in a food fight
today, so let's talk about .food, .food, a new top-level domain
that is being proposed; .food won't create a single new
restaurant. It won't create a new Web page. It won't create new
restaurant reviews or online reservation sites for restaurants.
They have already got those. All .food will be is another label
that has to be purchased and stuck on to pages we already have
on the Internet.
I am not saying that labels aren't important. They are
important. It is just that more labels alone will not drive
innovation and growth.
But new labels are hugely important to a segment of the
population who don't have any labels at all. ICANN's label
makers, the ones we have today, they print only in our Latin
alphabet. ICANN doesn't have a label maker for over 56 percent
of the people on this planet who don't use our alphabet at all
for reading and writing. And that includes speakers of Arabic,
Chinese, and a dozen languages in India alone.
ICANN has been working on a label maker that will do these
international characters for several years, but China actually
got tired of waiting and just built their own a few years ago.
Now, it shows that governments can and will splinter the
Internet if ICANN doesn't deliver what they need, and that is
not good.
Since all of us at this table have been working so hard to
make sure we have a single global addressing system so that you
can publish or read a Web page or send and receive e-mail no
matter where you are on the planet, we have to bring China back
to the fold and stop other nations from following their
example.
ICANN was closing in on a label maker for these
international characters, but then they opened things up for
all kinds of new labels, even in our alphabet. That is what is
created the land rush and the food fight that you are watching
today.
So a good outcome of today's hearing would be having ICANN
refocus its attention and efforts on these international labels
and not just government-controlled labels, right? People in
China and India want to have access to their own language
versions of things like .com and .org and .asia.
Finally, today's hearing, I think, shows that ICANN needs
better accountability to global users and to those who create
the compelling content and services. It shouldn't take a
congressional hearing to get ICANN to focus on fraud and abuse,
but the U.S. government has given ICANN guidance like this in
the past during our 10-year transition agreement.
For instance, a December 2008 letter from Commerce and
Justice is really what prompted the creation of the IRT. The
thing is, though, our transition agreement expires next
Wednesday. We need a new accountability mechanism, something
that will work better for all of us.
It is football season, so here is a football analogy. The
coach's challenge and official review really works well. It
lets you fix a bad call right there on the field when it
happens, instead of waiting until after the game when it won't
make a difference.
Well, Internet stakeholders need a coach's challenge, too.
We need a way to get an official review of an ICANN decision
when it happens, and there are tough questions about this
review, like how to call for a review, who gets the coach's
challenge flag, who are the review officials, and would the
review be binding or advisory on ICANN? And I know some
governments really want to shrink the U.S. government role with
respect to guiding ICANN.
But here is why I think the rest of the world will welcome
a continued defined role in--if the U.S. takes part of these
reviews. First, the U.S. position on free expression and
protection of human rights helps ICANN to push any censorship
to the edge of the Internet and not in the core.
And, second, today's hearing I think shows that we are
being sensitive and attentive to the number-one priority for a
global Internet. The fact is a billion of us are online today,
but there are 7 billion people on Earth. ICANN needs to empower
the next billion users before trying to build more label makers
for those of us that are already online.
So I will conclude just by saying that there is a lot that
is right about ICANN. It is clearly the right model, and it is
the way forward, but there is something missing. If I had to
put a label on it, I would say it was accountability.
Thank you. I look forward to your questions.
[The prepared statement of Mr. DelBianco follows:]
Prepared Statement of Steve DelBianco
__________
Mr. Johnson. Thank you, Mr. DelBianco. I always love it
when demonstrative evidence is brought in. [Laughter.]
I will now commence with the questions for 5 minutes. What
is ICANN's position on the trademark protection proposals in
the IRT report? And can we expect to see these proposals fully
adopted by ICANN?
Mr. Brent?
Mr. Brent. Thank you very much, Mr. Chairman.
As I mentioned earlier, I actually participated along with
its IRT, another acronym, implementation recommendation team.
The goal of that team was to come up with intellectual property
protections that made sense in the intellectual property
community for consideration inclusion in this new GTLD process.
Part of that process has been the issuing of a number of
what we call guidebooks. A guidebook is the big application
with all the rules that someone would need to participate in,
and that would actually talk about what these intellectual
property protections are.
There has been two issues of that guidebook, and a third is
expected in the first week of October. That new guidebook will
include at least two of these recommendations that have come up
through this implementation recommendation team process.
The first of those is what is called thick WHOIS. What does
that mean? That each new registry would have to provide a
central repository for WHOIS and make that publicly available
on a 24-by-7 basis.
The second one is, is what is called a post-resolution
dispute mechanism. There is definitely concern by the
intellectual property community that, with the creation of a
new registry, that registry might engage in mal behavior. If it
did, how would--you know, what would be the basis on which we
would try to address that bad behavior? And that is called this
post-resolution dispute mechanism.
There are other recommendations that have come up through
this IRT that are still under consideration. Some important
ones of those are what--URS, which is a faster and cheaper way
to address arbitration of disputes related to second-level
domain names. And another one is an intellectual property
clearinghouse. Those are still under consideration at this
time.
Mr. Johnson. Thank you.
This question is for each panelist. I would like for you to
respond. Two reports, one by OECD and the other by Summit
Strategies International, examine the first round of domain
name expansion. Those reports indicate that consumer demand for
the new GTLDs were well below expectations and that a
significant portion of the demand experienced was likely
defensive registration.
What are your thoughts on these reports, starting with Mr.
Brent?
Mr. Brent. Thank you again, Mr. Chairman.
You know, with all due respect to Mr. DelBianco, I would
describe these new TLDs differently. I don't think they are a
label maker. And we caught up in these technical terms, so let
me just quickly review.
We talk about top-level domains and second-level domains.
That is an entirely technically accurate way to describe how
DNS works. But the way to really think about this is a top-
level domain is a business. A second-level domain is a customer
of that business.
So what do I mean? ICANN has registered the name icann.org
to represent our organization; .org is company, public Internet
registry, that runs about 10 million domain names at roughly
$10 apiece, so you can see that there is real revenue
associated with that. ICANN is a customer of that domain name.
So the notion is that new TLDs are not about just new
labels, new names. Obviously, brands are important. That is why
we have these intellectual property concerns. But the notion of
new TLDs is a lot more about new potential service models, new
businesses coming up in use of the Internet.
So in answer to your question, I think a lot of the early
generic TLDs that were issued in the 2000 and 2003 rounds
thought that their primary competition was, how do I become
another .com? Probably what is of more value to consumers now
and, you know, what I think most businesspeople would think of
in a business plan is, how can I add value to end users, not
how do I go compete with .com?
So I think, in these early rounds, there was a lot of
notion of land grab. ``I am going to, you know, have 80 million
registrations and compete with .com.'' I think where we are
today is, people are really realizing the opportunity for
innovation. The financial industry, for example, is really
looking at this in terms of innovation for secure, trusted
financial domains.
So I think that is really the difference between the old
model of, ``I have just got to get a lot of numbers,'' versus
this new model of creating real value added for end users.
Mr. Johnson. Thank you, Mr. Brent.
Mr. Heath?
Mr. Heath. Thank you, Mr. Chairman.
I think those reports provide some useful pointers. It is
important to note that they were done, some of them, actually
in the last decade.
Mr. Johnson. They were done when, now?
Mr. Heath. In the last decade. They are quite old. And I
think they provide some useful pointers, but they were done at
the time when the .com bubble was taking place in--at the turn
of the century. And times have changed. The economic impacts
have moved on completely from those days.
And I think, if we were to do them again now, particularly
through an independent body like the OECD, you may find
different findings, but I think they do provide some useful
pointers. But the overall assumption that it increases
competition I think is just not there, because, in my view, it
decreases competition, because if we have to fund an awful lot
more defense, a lot more legal actions, and all this
registration process, that money is diverted from true
innovation and R&D and creativity, and it diverts resources
from other areas that could benefit the community, such as
corporate social responsibility and all the good stuff that
companies do around the world, because there is no value added
in having an unlimited number of domain names.
And I think I would also say that if you were a company--
let's take as an example like IBM. I wonder what the value is--
the value difference is between ibm.com and .ibm. Now, I would
wager there is no difference between those, but you would need
a body like OECD or an independent analysis to determine that.
And, frankly, that has not been done.
So I think both studies are useful. They provide some
useful pointers. They need to be updated and we could usefully
use them again. And I think it would be worthwhile revisiting
it now, and that is in my testimony.
Mr. Stahura. I think there is a big difference between
ibm.com and .ibm. I think .ibm is way more valuable than
ibm.com to IBM.
But to answer your questions, why were the registrations
below expectations? I could tell you why. It was because, in
that round, it was a beauty contest round. In order to get to
TLD, you had to talk big. You had to say, ``I am going to get,
you know, many, many registrations.'' You know, I applied for a
name in that round. I said I was going to get X registrations.
I lost to somebody who was going to get Y, a much bigger
number.
So in order to get to TLD, you had to say, ``I am going to
register a lot of names.'' So it is no surprise to me that,
when you actually got the TLD, that the number of names
registered in it is a lot less than what you had expected. So
that is why it was below expectations.
And regarding the too much defensive registrations, first
off, many millions of names were registered in those new TLDs.
We did a study comparing those new TLDs to the old TLDs, like
.com and .net, that you might have heard of, and that study
said that the number of defensive registrations in .com was
way, way more than the number of defensive registrations in the
old set of new TLDs. So that is one reason why I think the
number of registrations is low compared to .com and .net.
Also, back then, nobody knew that there was going to be
more TLDs. It turned out, there wasn't more TLDs. So people
rushed into those new TLDs back then, thinking, ``You know, not
sure that there is going to be a new one, so I would better
defensively register everything I can think of.'' So that whole
land rush mentality was another reason why the number of
defensive registrations was high, even though it was low
compared to .com.
So that is the reasons.
Mr. Delbianco. Thank you, Mr. Chairman.
I think we have to remember that Web sites and applications
are what drive visitors and customers. It isn't the label. It
is great if you can get a label that is easy for people to
remember, because they might just type it in if they saw it on
the side of a truck or on a billboard or heard about it, but it
is not essential to have that business be successful.
I will give you an example. Right on the Hill here, we have
a restaurant we all like to patronize, Bullfeathers, right? And
if you wanted to find out whether they had a catering facility
for tonight, we might jump on the Internet and type in
``Bullfeathers.'' What would you put at the end? You would put
.com. You would just sort of assume it is commercial and
everybody remembers com.
So you would type in bullfeathers.com. Well, right away you
would see that that is not the restaurant. It is a telecom and
car stereo installer on the eastern shore of Delaware. So they
don't compete at all, but it is different.
What would you do next? Would you guess at bullfeathers.biz
or .us or, after Paul and ICANN launch thousands of new--
hundreds of new domains, maybe you will guess
bullfeathers.food, bullfeathers.diner, bullfeathers.bars. I
mean, sooner or later, you are going to stop guessing and do
what? Use a search engine.
And that is why I think the studies we are speaking about
today in your question are hopelessly out of date. As we have a
lot of domains today, and we are going to add many more, people
will just use search engines, because they give you a reliable,
context-based, page-ranked look at the sites you want to visit.
And if we were going to do a study, Mr. Chairman, today, I
would just look at what happened last week, right? We had a new
TLD effectively launched when a country code, .cm for Cameroon,
decided to open up their country code top-level domain for
anyone to register. Well, they are breaking records. They are
breaking records as people go to register names that end in
.cm.
And why is that? Well, because a lot of people, when they
type in, guess what? They make a mistake. They leave out the O
in ``com.'' And where does it take them? It takes them to
Cameroon or .cm.
This is about typographical errors that are driving demand
for people to get into that area. So naturally, defensive
registration are ringing the cash register for the companies
running .cm. Maybe we don't need another study. Just take a
look at what is happening there today.
Mr. Johnson. Mr. Stahura, you wanted to respond to----
Mr. Stahura. I mean, it is dot--Cameroon, a country. They
can do what they want with their TLD, I believe. But there are
provisions in the current version of the draft applicant
guidebook that would prevent confusing, with another TLD that
is confusingly similar to an existing TLD, like .com.
So, for example, even if I wanted to, I could not get .com
or, you know, .kom, for example. So the new--we are not talking
about this new round of TLDs producing domain names like .cm
that Mr. DelBianco was just talking about.
Mr. Johnson. Thank you. I will now turn it over to the
Ranking Member for questions.
Mr. Coble. Thank you, Mr. Chairman.
Mr. DelBianco, it may be a food fight, but at least it is a
non-violent, orderly food fight, and I commend you all for your
civility to that end.
Mr. Brent, let me ask you, why was the comprehensive
economic study recommended by the ICANN board in 2006 never
been conducted?
Mr. Brent. Thank you.
There are clearly important economic issues associated with
new GTLDs. But just to be clear, this 2006 study that has been
referenced many times--and I re-read the board resolution last
night before I testified in front of the Committee--that 2006
resolution was not related to threshold questions of new GTLDs.
There was an economic study requested at that time that
related to contractual issues with three top-level domains. I
would be happy to provide that resolution to the Committee
here.
But putting that aside for a second, that doesn't--there
still are these open questions about, well, you know, what are
the economic characteristics of new generic top-level domains?
ICANN has actually, in the last 18 months, run three different
economic studies. There are some important issues there that,
you know, may come up today, for example, registry-registrar
separation or integration, sort of the vertical structuring of
the industry, price caps in new generic top-level domains or
not, on registration or on renewal.
So there are many of these important issues. ICANN has
actually--because of the strong community interest in this area
of economic analysis, we are going to take a further step,
which is to bring on a new set of economists, different people
entirely, have them review all the work done to date, put that
work in the context of the questions that have been asked by
various members of our community, and then assess have we
answered the question at that time.
Mr. Coble. Okay.
Mr. Brent. I will say that--just to very quickly add on--I
will say there is some concern, which I am sure you can
understand--I know there are entrepreneurs on this panel, and
my background was in venture-backed companies. And it is always
difficult, at what point would you stop analyzing, do you stop
studying?
We have done three. I think we are going to review that
work in the context of the questions that have been asked and
then say, is that enough? Have we addressed that question?
Mr. Coble. Thank you, Mr. Brent.
Mr. Heath, is it your belief that ICANN did a sufficient
job in seeking the views of trademark owners and consumers
prior to the announcement of the proposed creation of an
unlimited number of GTLDs?
Mr. Heath. In a short word, no, I don't think they did,
because I think they should have acted prospectively, rather
than retrospectively, which would be a much more sensible way
of doing it. And I think there is still a lot of work to be
done, and we acknowledged what Mr. Brent said, that that work
is still ongoing.
The work--has been very useful and very valuable, but it is
safe to say that those recommendations are untested. It is not
an exhaustive list, either. And it was pulled together in a
very, very short and, frankly, unrealistic timeframe of just 8
weeks.
If we had had more time and we were consulted at the
appropriate moment, we could have come up with some more
substantial recommendations. They are good ones. They may work;
they may not. We don't know. But we need to do more, and we
need to have done it earlier, so I think they could have done
more.
Mr. Coble. All right. Thank you, sir.
Mr. DelBianco, although much of the testimony this morning
has been about the protection of trademarks and other
intellectual property, ICANN identified three other issues:
potential for malicious conduct; security and stability of the
Internet and top-level domain demand; and, finally, economic
analysis.
In your opinion, to what extent do you feel that these
other issues have been adequately addressed?
Mr. Delbianco. Thank you, Ranking Member Coble.
The adequately addressed is not sufficient to simply say,
as Doug Brent has, that those are ``under consideration.'' What
will matter is seeing it--these requirements start to show up
in the draft applicant guidebook, to where the minimum
requirements that people that bid on these new top-level
domains are more than just simply disclosing what they are
going to do, but meeting minimum standards of rights
protection.
And as you go down that list of trademark protection,
consumer protection, those are intertwined. The only reason
these companies bother to protect brands and cybersquatting is
to stop their customers from getting defrauded by visiting
sites that are fraudulent, trying to steal their I.D. number
for a bank site or an ISP or counterfeit goods.
This is about helping people avoid fraud. It isn't
protecting rich American companies who are sacredly guarding
their trademarks. So those are tightly intertwined.
And earlier, you asked a question about Mr. Brent, about
why haven't studies been done? But I would remind you that the
rest of the world is incredulous that we think we need to study
whether they need the ability to type their domain names and e-
mail addresses in their own language and alphabet.
Now, they need that now, and we ought to be focusing on
that. Interesting that that didn't show up in that list of
priorities, because ICANN has sort of smushed that in with the
launching of all these new domains, like .web. We ought to be
focusing on the rest of the world, because as the steward of
the Internet, of a global Internet, that has been our mission.
Mr. Coble. Thank you. Let me get to Mr. Stahura.
Mr. Stahura, we have heard about proposals to address the
concerns of trademark owners regarding the introduction of an
unlimited number of new GTLDs. What role would a registry or
registrar play in implementing these proposals or others that
may be suggested, Mr. Stahura?
Mr. Stahura. Speaking about the unlimited number idea,
there has been a lot of ideas to limit not just the number, but
other things. For example, the IDN idea that Mr. DelBianco was
just saying, IDN meaning international domain names, let's--you
know, it is pretty much indisputable that, yes, we should have
new top-level domain names in Chinese, in Arabic, and so on.
The question is, should we limit the rest of us so that we
can't get our .blog. For example, in English and let the
Chinese get .blog in Chinese first? It is back to competition.
I think that they should--we should all go at the same time.
They should be able to get .blog in Chinese or Arabic, and we
should be able to get .blog in English. So that is one way of
limiting it, letting them go first. Okay?
Another way is, limit the number. You know, we don't limit
the number of patents each year. It is an unlimited number. We
could have a number--unlimited number of patents next year. We
don't, but we could. But it is--every year, it is pretty much
the same number of patents. We don't limit it.
Another way to limit it is restricting the type of TLDs.
For example, let's just have a TLD for the Lakota Indian tribe.
And, yes, that is another way of limiting it, and maybe they
will apply, this tribe will apply for .lakota. But that TLD--so
one idea is to just limit it to restrict TLDs and not have any
open TLDs, like .blog, for everyone else.
The problem with that limitation is that .lakota is only
useful and restricted--it is only restricted to that Lakota
people. So it is another not good thing. Restricting TLDs makes
it so that there is not as much benefit for everybody.
Mr. Coble. Thank you.
My time is expired, Mr. Chairman. I yield back.
Mr. Johnson. Thank you, Mr. Ranking Member.
Next, we will hear from the esteemed representative from
Virginia, Mr. Rick Boucher.
Mr. Boucher. Well, thank you very much, Mr. Chairman. I
appreciate your having today's hearing relating to the
management of the domain name system.
And I have a number of questions of our witnesses about how
some of the proposals that ICANN has made could affect
competition and could either benefit or adversely affect
consumers. And let me start with the settlement agreement that
was entered into between ICANN and VeriSign in 2006.
Excuse me. I have a terrible cold. I hope you can hear what
I am saying.
In that agreement, which was subsequently approved by the
Department of Commerce, VeriSign, for all practical purposes,
was granted what amounts to a perpetual monopoly in its
management of the .com registry. And, obviously, any time you
have a monopoly in operation, there is the potential for
adverse affects on consumers.
Now, we have had that agreement in place now for about 2
years. Maybe it is too early to cast any judgments about its
effect in the marketplace, but I would like to give our
witnesses today an opportunity to comment on the fact that,
under the terms of this agreement, we will not have what
amounts to a re-competition for management of the .com
registry, because that troubled you.
Have you seen any problems so far? And do you have any
suggestions for us as to how we might address whatever concern
you have?
Mr. DelBianco, your hand was up first.
Mr. Delbianco. Thank you, Congressman Boucher.
You made the statement that VeriSign has some sort of
permanent lock, but I want to make it clear, ICANN owns the
label maker for .com. ICANN owns it. ICANN has a contract where
currently VeriSign is the one running and investing in cranking
out the labels----
Mr. Boucher. But under the terms of the settlement
agreement that the Department of Commerce approved, there is
the potential for what amounts to a perpetual re-award of that
without competitive bidding.
Mr. Delbianco. There is the potential for renewal of a
contract because ICANN's standard contract, the same contract
it does for all the folks that run the label makers, so that if
they perform their duties well and don't have any material
breaches of their duties, they are entitled to a renewal of
that contract without necessarily having to re-bid it.
Now, a lot of that has to do with the fact that they make
massive investments, especially with the hundreds of millions
of names that are in a registry like----
Mr. Boucher. Well, I gather you are defending the terms of
the agreement. That is fine.
Mr. Delbianco. I am defending----
Mr. Boucher. But let me just say that many observers have
questioned the fact that determining whether or not VeriSign is
performing properly and doing a good job and meeting quality
standards can be very subjective. And the best way, in the
minds of many, to address matters like that is to have a re-
competition with periodic recurrence. And that is not assured
in this.
Let me ask other members of the panel if they have any
views. Yes, sir?
Mr. Stahura. Obviously, you know, I am in business to make
money. I would love to re-compete and, try to win the .com
contract. And I am sure if all my competitors were sitting
here, they would all be saying the same thing in unison. Of
course, we would love to run .com.
That contract is not going to come up for a while. I would
also like to compete with them and get .web or .family. That is
another way to compete and provide these benefits to the
public.
Mr. Boucher. All right, so you are not--you are not
expressing direct objection to that agreement.
Mr. Brent, do you want to be recognized? Nope? You have
nothing say?
All right. Mr. Heath, anything?
Mr. Heath. I don't have too much to comment on. I would
simply say that surely this boils down to accountability and
normal business rules. If the relationship you have in your
contract is working and you have performance indicators on that
contract and they meet those, then you want to renew it, and--
that is fine. If you don't meet them and it doesn't work or
there is a problem with it, then you terminate the contract and
you go and look at somebody else.
Mr. Boucher. So it may come down to just how adequate these
performance standards really are? As they are stated, do you
think they are adequate? You don't really--I am seeing people
nod. All right.
One further question, Mr. Chairman. I see my time is about
to expire. One of the proposals that ICANN has put forward
would allow the registries, such as VeriSign, that manage the
top-level domains to begin to sell domain names directly to end
users, in effect, going around the registrars, like GoDaddy,
that carry that responsibility today.
And under the current structure, that is not permitted.
Effectively, VeriSign and other TLD administrators have to
wholesale to the registrars, who then in turn sell to the end
user. And that structure does encourage competition, because
you have a variety of registrars competing with each other.
It has been suggested that the managers of the top-level
domain names might have information about end users that would
enable them to obtain a marketing advantage, if they were given
an opportunity to compete with the registrars in selling these
domains directly to the end user. Does anyone on the panel
share that concern or have any thoughts about it?
Mr. Brent?
Mr. Brent. Thank you. Thank you, Mr. Boucher.
This is an active discussion going on within the ICANN
community right now, and there is no resolution of this, but
let me just quickly paint the picture, if I can.
There are two very extreme views on this topic. One is that
would mostly be held by incumbent registries that--to prevent
registrars from essentially getting in a business that is
called back-end registry services. If you--the best example of
this today would be if you think about the .org registry, the
public Internet registry, they have 10 million names, but it is
actually a very small company, very few people, 10 or 20
people. They outsource the running of that registry to another
company.
It is envisioned in this new GTLD round that that notion of
backend registries will become a much more important aspect of
the marketplace. And so there is a question from the incumbent
registry point of view, should that be allowed for registrars
to be in that business? Needless to say, the registrars have
entirely the opposite view.
What ICANN has done to try to answer that question is,
first of all, go through a community consultation process, but
get two eminent antitrust economist/lawyers involved, Salop and
Wright, to analyze this question for us. We have further
meetings planned on this particular topic, and I would say this
is going to take some time to resolve.
Mr. Boucher. Do you have a timeframe for resolving all of
these various matters that are currently pending and--deciding
when you are--whether or not you are going to have additional
generic top-level domains and resolving issues like this,
direct competition?
Mr. Brent. Right, sir. I think this is probably something
all the members here have more experience than I do. When it
comes to a product launch or finishing a software product, I
know how to put a date on that.
And what we have found in this process is it is a little
bit like a foot on the gas and a foot on the brake at the same
time. On the one hand, our community is strongly telling us:
Finish this process and, on the other hand, only finish it when
all the questions have been thoroughly answered.
Each time as we have approached this, each time we have
approached a decision point, we have said the legitimate
concerns must be answered before we can proceed. And this is
another one of those that I could put a forecast up and say,
``Perhaps it will take 3 or 4 months to resolve this registry-
registrar vertical integration.'' Certainly, the process can't
proceed until that question is answered.
Mr. Boucher. Mr. Chairman, with your indulgence, I would
like to give some other panel members an opportunity to
comment.
Yes, sir. I can't pronounce your last name.
Mr. Stahura. Oh, sorry. Stahura.
Mr. Boucher. Thank you.
Mr. Stahura. I am not sure I am pronouncing it right.
Your question about, you know, registries selling directly
to the public, well, it is already happening in some
registries, like country code registries that, you know,
various countries have their top-level domains, and they do
sell direct to the public, as well as through resellers, which
we call registrars. So it is already happening.
Essentially, it is called vertical integration. You know,
the sale--the source of the product acquiring or, you know,
selling direct to the public and--well, acquiring their
reseller channel. And vertical integration provides a lot of
benefits to consumers because it makes two companies together
more efficient than if they were separate.
And, you know, I am not a competition expert, but it is
usually allowed as long as there is not market power by one of
the two that is acquiring each other.
Mr. Boucher. Well, when you have one company that manages
the entire top-level domain registry, that might be one
indication of there being market power----
Mr. Stahura. Correct.
Mr. Boucher [continuing]. Particularly if they can use
information unique to them to gain a marketing advantage.
Mr. Stahura. Right. But it could also be that maybe there
is a large registrar that is selling a small--you know, is
acquiring a small registry. That is another indication of
market power.
So absent market power, I think vertical integration
provides efficiencies that, you know, consumers benefit.
Mr. Boucher. Okay.
Mr. DelBianco?
Mr. Delbianco. Thank you.
The structural separation has long been a case at ICANN to
where the registries can't own registrars and registrars can't
own registries. And that is really what stimulated the
competition that the white paper called for 10 years ago. We
have seen markups on domain names go from, what, $75 down to
just $5. That is what competition has generated.
And that separation is a good thing, and many of us believe
at ICANN, as I do, that we should maintain that separation. But
in the new TLD contracts that are being anticipated, there is
probably not going to be a separation between registrars being
able to run their own registry.
And I think you had your example maybe a little bit
backwards. There is no concept of--VeriSign selling .com
directly, because they are covered by an existing contract, and
they are not allowed to sell direct and never will under that
contract.
Instead, it is the new contracts, like Paul's bidding on
.web, I believe, and Paul is a registrar. He is the second
biggest registrar on the planet. But he would also like to be a
registry, so he would like to see that separation wall come
down so that Paul can not only run the .web, but sell it, as
well. And I believe that that has some concerns for a lot of us
around the world because of insider trading--there is a phrase
you would understand--insider trading.
Paul is going to be able, by running the .web, to not only
know what people are trying to access in the page, but he will
be able to control the inventory of those names, as well as
distribution. I think we should maintain that separation as we
roll forward into the new top-level domain.
Mr. Boucher. Thank you very much.
Thank you for your indulgence, Mr. Chairman. A very helpful
discussion.
Mr. Johnson. Thank you, Mr. Boucher.
Next, we will hear from Mr. Chaffetz, from Utah.
Mr. Chaffetz. Thank you, Mr. Chairman.
And, again, thank you to our panelists.
One of my concerns is how we deal with the language issues,
because that seems to me, from a global standpoint, a much
bigger issue, particularly--you mentioned Japan, but obviously
other countries that are using an alphabet that is perhaps
different than ours.
Go back and explain to me what we are doing or not doing to
take care of that issue.
Mr. Brent. There are really two tracks of this--what is
called internationalized domain names, which is that, in the
very last part of a name, where you would see .com or .org, it
could say, for example, .china in Chinese or it could say, you
know, .food in Arabic.
So those names have undergone a lengthy technical
development process--actually, not primarily managed by ICANN--
that is going through the IETF, Internet Engineering Task
Force, that is now just at the very brink of conclusion. So
there is a whole technical set of efforts going on.
And then there are two ways that these internationalized
names will show up. One is in what is called country code
names, which we haven't spent a lot of time talking about, but
that would be a .uk, .au, those--you know, those two-letter
names. The countries that--particularly the ones that use non-
Latin characters, non-English language, there is what is called
the fast-track process, which is anticipated to culminate this
year, where country code names, .china in Chinese or
.saudiarabia in Arabic, could be put in place.
But, really, in the context of the generic names, which is
more what we are talking about today, as several panelists have
mentioned, we don't think that the notion of the government-run
TLDs is all that people are looking for in other countries of
the world and that part of this new GTLD process and what our
policy development said from our bottom-up, multi-stakeholder
world was to simultaneously launch new GTLDs, new top-level
domains in international characters and in Latin characters at
the same time.
Mr. Chaffetz. And with this looming deadline, what is the
plan, given that, you know, next week is next week? So----
Mr. Brent. Right. So I should say that the timing of this
new GTLD program, at least in the mind of ICANN, is completely
independent of the timing of our arrangements with the U.S.
government. This is a process that has been going on literally
for 10 years, so we couldn't have timed it to get in front of
you today.
So, you know, the process has originally been targeted. We
have passed original targets, in terms of delivery. The most
recent delivery date we were aiming for was February of next
year to launch the process. Based on where we are, we have a
couple of outstanding issues, I am expecting that that date
will likely be missed.
But we are talking about, you know, that kind of a launch
timeframe. It would be, you know, many months from now.
Mr. Chaffetz. I don't know exactly how I feel about that
answer, but if you--pattern of missing deadlines--yes, did you
want to make a comment?
Mr. Stahura. Yes, I would say there is--I thought that we
would have new TLDs years ago. There has been pushback,
pushback, pushback by forces. And so, you know, to say that
somehow it was arranged that TLDs and the ending of the JPA
would be kind of coincidental and one would be pushed back a
week after the other one or a month or 2 months, that is just
not true. We should have had TLDs a long time ago.
Mr. Delbianco. Thank you, Congressman, for sharing the
concern about making sure the next billion people around the
planet can use their own alphabet. The notion that folks in the
Arab world can't even type google.com to do a search in all
Arabic, they can't do it. They have to turn their keyboard
sideways and use three-fingered salutes to turn ``com'' on
their keyboards. That is intolerable. And I share your concern
that we need to roll that out.
Mr. Brent has correctly said that we are giving governments
a sort of fast-track on their country codes in native scripts,
but think about it. A lot of those users want to use .asia in
Chinese. I would like to be able to make netchoice.org
accessible to people in Chinese. And I don't want to have to go
to those countries and beg for their permission to host my
domain in their particular script.
There are 22 countries that use the Arabic language, so an
Arabic user, which of the Googles would they have to go to,
google.eg in Arabic for Egypt, .sa for Syria in Arabic? No,
they want google.com in Arabic. And Google shouldn't have to
try to secure its rights in those new versions of .com, either.
If they own Google.com, they ought to have an opportunity to
either guard or light up that domain when it goes to the Arabic
world.
And then, finally, you asked about timing. And there is one
sort of coincidence of the timing, and that is, under this
transition, we have exercised guidance and given guidance to
ICANN on really thorny issues like this one, by refocusing
their priorities, and that is what generated the IRT, frankly.
That is what is causing them to pay a lot more attention to the
economic studies.
ICANN has a lot of people to answer to, so it is very tough
to know where to listen. But as Samuel Johnson once said,
nothing focuses the mind like the thought of a congressional
hearing in the morning. [Laughter.]
Mr. Chaffetz. Thank you. I see I am out of time here.
Thank you, Mr. Chairman.
Mr. Johnson. Thank you, Mr. Chaffetz.
I would like to ask about ICANN, but first I would like to
know, which countries are the biggest users of ICANN's
services?
Mr. Brent. I am trying to think of the right way to answer
that.
Mr. Johnson. Well, top three. I will limit it to that.
Mr. Brent. There is the generic name space and the country
code name space. In the country code name space, there is
actually probably pretty even usage across the countries in the
world and, in some sense, it is actually the least developed,
least technically capable countries with whom we have to spend
the most amount of time.
So, for example, ICANN typically will run security-oriented
training with small countries. And, you know, very small
countries around the world all want to have their Internet
presence. So it is actually interesting that, in the country
code space, it is sort of the smallest, least technically
advanced demand the most resource from ICANN.
Mr. Johnson. Well, how prolific are the Chinese people at
wanting to protect domain names within your registry that you
control?
Mr. Brent. Right, right. So, actually, as part of this
implementation recommendation team process, the intellectual
property interests within ICANN, we held a meeting in Hong Kong
that I personally attended, specifically looking at these
trademark interests.
And I would say there is a very great--a very high interest
both in new generic top-level domains in China--that is, the
Chinese people would like to see new top-level domains--and
that they have many common concerns with those that Mr. Heath
has expressed, in terms of protecting their trademarks. There
is no doubt about that.
Mr. Johnson. So I take it that the Chinese use ICANN's
services pretty frequently and to a great degree over other
countries? Is that fair?
Mr. Brent. Yes, I am not trying to be contradictory, but I
don't think that is the right conclusion. I guess, really, as I
said, it would be, you know, very small, you know, Mauritius
or, you know, very small countries that tend to have not the
technical expertise with whom we spend the most time.
And that China, for example, has a very--you know, the way
they run the .cn infrastructure is very professional, very high
tech, and they don't--we don't really spend a lot of time
supporting them.
Mr. Johnson. Your board members, how many do you have? And
how are they selected?
Mr. Brent. Well, this is a little bit of a simplification.
The ICANN board is almost legislative in nature, in the sense
that it tries to be both representative of the various
constituencies in ICANN, so contracted parties, registries and
registrars. It tries to--and then there is also an independent
nominating process, called the NomCom--again, another acronym--
but a nominating committee that is an independent committee of
something like 21 people--I believe that is approximately
correct--who has geographic quotas in terms of filling board
positions from around the world.
Our board is quite diverse. You know, obviously, we have
people from North America, from the United States, and we have
people from all over the world.
Mr. Johnson. See, you mentioned or someone mentioned on the
panel about the Chinese pulling out of some--Mr. DelBianco, you
want to help me with that?
Mr. Delbianco. In 2006, China lost patience with us and
with ICANN, because we weren't able to deliver Chinese
characters to the right of the dot. That is intolerable for
them serving their own people to not be able to type an e-mail
address or a domain name or a link on a Web page using their
own characters.
You would see Chinese Web pages, Mr. Chairman, where
everything on the Web page was in Chinese, except for the
domain name, except for the e-mail addresses that are on the
page, or the links on the page. That was just intolerable that
China decided to fork the Internet. They have their own mini-
ICANN running inside of China that sits on top of ours, and it
allows people in China to type real Chinese characters for the
.cn, and they have their own version of .com and .org.
So that is what I mentioned in my testimony, that they have
already splintered or forked the Internet.
Mr. Johnson. Is that a good thing or is that a bad thing?
Mr. Delbianco. It is a scary thing, because what it
demonstrates is that we have lost our way at having one single,
global Internet addressing system that works no matter where we
are on the planet, the same security, stability, and
reliability that, if you are flying on a mission to Shanghai,
that your e-mails will reach you just as securely as ever, that
you can send and retrieve your Web pages and e-mails without
worrying about things being misdirected or going to the wrong
page.
We need one addressing system. This is one world, one
Internet. So it is a very bad thing, Mr. Chairman.
Mr. Johnson. All right. Have the Chinese ever been
represented on ICANN's board?
Mr. Brent. I have been with ICANN 3 years. During that 3-
year tenure, no, but I believe--and I am happy to get back with
a specific answer--I believe in, prior to that time, there has
been Chinese board members at ICANN.
Mr. Johnson. All right. Thank you. My time has expired.
Mr. Goodlatte, of Virginia?
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Brent, there is a strong likelihood that hundreds of
new generic top-level domains will be granted in the short term
if this proposal is enacted. Can you guarantee us right now
that ICANN has the resources to properly enforce the rules that
we will establish for the registries under this proposal?
Mr. Brent. You know, I think the short answer is--and I am
sure you want a short answer--I think the short answer is yes,
and I think the longer answer is that the key to achieving that
goal is to have the right rules.
You know, often what we find--and I think the reason why--
and, you know, my spending time with a lot of the trademark,
intellectual property people over the last 6 months has been a
deep frustration about the way things work today.
Mr. Goodlatte. But let me interrupt. Do you agree, based on
the testimony of Mr. DelBianco and Mr. Heath, that maybe you
don't have the right rules ready to go yet, that there are
still a lot of things that need to be worked out here before we
move ahead?
Mr. Brent. You know, we might question a lot, but I think,
absolutely, we have more work to do, and we are actively
considering additional rules, not only in intellectual property
protection, but I think, importantly, I would be happy--if the
panel is interested--to talk about this notion of malicious use
of the Internet, as well.
Mr. Goodlatte. And can you guarantee me that ICANN has the
resources to continue to perform its core role of ensuring the
stability of the domain name system after the rollout of this
proposal?
Mr. Brent. Right. And I think, again, the short answer is
yes. And the absolute prime directive of ICANN is this notion
of maintaining a single, global, interoperable and secure and
stable route zone.
Mr. Goodlatte. Okay. Well, if the rollout of the new GTLDs
gets held up, would ICANN still move forward with the rollout
of internationalized domain names for current top-level domains
in order to help other countries from--in order to help deter
other countries from setting up their own balkanized versions
of the Internet, as was described by Mr. DelBianco with regard
to China?
Mr. Brent. Sir, I can't give you quite as short an answer
to that one, but bear with me for a second. So, first of all, I
would want to respectfully disagree with Mr. DelBianco. It is
an overstatement to say there is a fractured Internet today.
I certainly do agree that the goal--and extremely important
to ICANN is this notion of a single, global, interoperable name
space. We could have a technical debate about the state of
China right now, but I don't think it would be of interest to
the Committee. But that is, absolutely, the number-one goal.
In the very short term, the intention is before the end of
this year to--for key countries in the world that use non-Latin
characters, non-English countries, to give them--to delegate
these names in their own languages for their country code
domains.
So the easy example would be, for China, which today is
.cn, to delegate a .china in Chinese characters.
The third question you asked is a little bit harder for me.
I am the chief operating officer----
Mr. Goodlatte. Well, let me ask Mr. DelBianco if he wants
to respond to that.
Mr. Delbianco. You asked the question, Congressman
Goodlatte, about current TLDs. And that means more than just
the country codes. And as Mr. Brent indicated, a fast-track
just for governments is not the track that Chinese users,
Arabic users need. They want to get access to .org, .com,
.asia, and all of those sites, not just the country codes.
And so I truly believe that we need to expand that track.
And given the resource constraints, this is a very complex
thing that ICANN is trying to do. We have been working for
several years on these IDNs, or internationalized domain names.
So I think it is far better for ICANN to focus on getting
that track out of IDN versions of top-level domains, work out
the kinks in this system, and then, based on that, then let's
move ahead for the Latin alphabet TLDs that are currently
driving a lot of the food fight here today.
Mr. Goodlatte. Okay. Now back to Mr. Brent.
Mr. Brent. Yes, Mr. Goodlatte, I just didn't get a chance
to answer--fully answer your question. The last part of your
question was related to the launch of IDN separately from Latin
character TLDs.
ICANN is a bottom-up policy development process. We are a
multi-stakeholder organization. I wish, as CEO sometimes--as
COO--I could make these decisions on behalf of ICANN. That is
not my role.
The policy development--the policy work that went on for 3
years that involved, you know, probably tens of thousands of
person hours, what came out of that was a policy recommendation
for simultaneous launch of IDN TLDs and generic TLDs, in part
for competition reasons, in part because of all of the same
rules that we are concerned with for intellectual property
protections, malicious use protections, for string similarity,
for all of the complexities of this process must be done before
the IDNs can be launched, and actually, in the view of the
policy developers, should be the same for both IDNs and----
Mr. Goodlatte. Well, let me follow up on that, because
studies have shown that consumers are increasingly worried
about the safety and security of the Internet. How do you think
this proposal will contribute to consumer confidence in using
the Internet? And let me ask the other panelists to talk about
your raising concerns regarding intellectual property
protections, as well?
Mr. Heath?
Mr. Heath. Well, I think--I mean, what we have just been
talking about, the international domain name system, there is
clearly demand for that. And that probably is a parallel track
from the opening up of GTLDs generally.
But you have touched on the issue of consumer confidence
and safety on the Internet generally. There is some in my
testimony on it. And the fact is, it is not as secure as it
should be now, just with the 21 GTLDs we have at the moment.
And, in fact, it has got worse. The study I referred to in my
testimony, the British government carried out this year, they
also carried it out about 3 years ago, and that the confidence
in security of the Internet 3 years ago was a lot stronger than
it is now.
And that is with the existing system. And our concern is
that if an unliberated expansion of the GTLD space will just
exacerbate that process and it will be orders of magnitude
worse than it is now.
So I think if we can get the governance right on the
existing system, then you can consider a measured rollout of
names that are required according to demand, rather than doing
everything all at once or simultaneously, which strikes me as
being a bit silly.
Mr. Goodlatte. Mr. Chairman, I know my time is expired, but
Mr. Heath raises a point that I would like to--back to----
Mr. Johnson. Please.
Mr. Goodlatte.--Mr. Brent to respond to.
Mr. Johnson. Please proceed.
Mr. Goodlatte. Thank you. And that is--you know, we do have
enforcement problems right now. And what enforcement mechanisms
will ICANN have to employ to ensure that applicants and--we are
going to have a wide--you know, we are not just talking about,
you know, a limited array of people who are going to have the
ability to have a GTLD. You are going to have all kinds of
people applying and receiving them, maybe hundreds, maybe
thousands.
How are you going to keep them--how are you going to have
them comply with their own rules, once they have their own
GTLD?
Mr. Brent. Right. So it is sort of hard to--what level of
detail to answer this question, but I think that there has been
a couple of important areas where ICANN has been asked to
develop--and, really, the ICANN community--to develop much more
specific rules, intellectual property protections, which
actually many are happy with at the top level, the sort of far-
right-hand name in this new GTLD proposal already.
The big concern, as it is today, is around these second-
level names. So it is a question of people behaving according
to their rules, making it easier and cheaper for intellectual
property rights holders to dispute things, to make it easy and
cheap.
So there is a whole set of rules there around malicious
conduct. You know, there are huge opportunities in these new
TLDs to make rules that make malicious conduct harder for these
new TLDs, make enforcement easier, and make it easier to manage
a whole variety of TLDs on one contract, where today the 21
TLDs that ICANN have are all on separate arrangements with
ICANN.
Mr. Goodlatte. Mr. Stahura has been chomping at the bit,
and then Mr. DelBianco.
Mr. Stahura. I have so much to say. It has been 12 years.
Thanks for giving me the opportunity to speak.
Regarding malicious conduct, it is sort of like we want to
come out with new bank branches, but the number of bank
robberies, because there are new bank branches, won't go up.
The total number of bank robberies is probably going to be the
same, even though we come out with more bank branches. And that
is the first thing.
The second thing is, these new bank branches are going to
have better safes, more security, so like these--like the IRT
rules to protect trademark holders and so on. So the existence
of new TLDs does not increase the amount of bad stuff that
happens on the Internet.
Anybody could register a name right now in .com. There is a
lot of--it is infinite name space in .com, okay? You could go
in there and register a name now and do phishing with it.
Coming out with .paul or .cool is not going to increase that.
Mr. Goodlatte. Well, my debate coach in college said that
analogy was the weakest form of argument, but I am not sure I
see the analogy here, nor do I buy the argument that, if you
have more bank branches, there won't be more bank robberies. It
seems like there are more opportunities and there will be those
who would be interested in breaking the law having more avenues
to search out and find the weak spots where they could violate
the law.
And if you have more people enforcing rules and enforcing
them in different ways, people are going to shop for those
places where they get the best deal on violating the rules. So
I am a little concerned about that analogy.
And, Mr. Chairman, if you will allow, we will give Mr.
DelBianco the last chance to answer, and then I will cease and
desist.
Mr. Delbianco. Thank you, Mr. Chairman.
Mr. Brent talked about addressing Congressman Goodlatte's
concerns by saying, well, yes, if you have the right rules, I
think we could do it, if you have the right rules. And at the
risk of using an analogy---- [Laughter.]
Mr. Goodlatte. It is not easy.
Mr. Delbianco. Those of us who live in the capital----
Mr. Goodlatte. We are setting a high standard here for----
Mr. Delbianco. Those of us who live in the capital region
actually regard speed limit signs as merely advisory. You see,
it is enforcement that matters. And that is where the rubber
will meet the road at ICANN. Do we have the resources to do the
enforcement of these new rules once we come up with them?
And I would hasten to add that rules that are written once
and put into contracts instantly become obsolete. We are in an
arms race with the bad guys. And contracts that stipulate how
one handles the WHOIS may not be any help at all with
tomorrow's generation of how they do phishing or fast flux
hosting or new areas that they come up with, like domain
tasting was something we hadn't anticipated in the rules.
So not only do we have to have enforcement, we have to be
quick to adapt the rules we have to new threats to consumers
and new threats for fraud on the Internet.
Mr. Goodlatte. Well, I like that analogy better, but thank
you, Mr. Chairman.
Mr. Johnson. Thank you, Mr. Goodlatte.
And, Mr. DelBianco, you will receive a reward that will be
coming to you over the Internet for the dubious distinction of
having made Mr. Goodlatte smile and laugh. [Laughter.]
No response.
Mr. Goodlatte. And I am still smiling, Mr. Chairman.
Mr. Johnson. I would like to thank all the witnesses for
their testimony today. Without objection, Members will have 5
legislative days to submit any additional written questions,
which we will forward to the witnesses and ask that you answer
as promptly as you can to be made a part of the record.
Without objection, the record will remain open for 5
legislative days for the submission of any other additional
materials.
And with that, this hearing of the Subcommittee on Courts
and Competition Policy is adjourned.
[Whereupon, at 11:37 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record