Government to back off in regulating ccTLDs

I just love it when I know I’m right, and everyone else thinks I’m wrong. Or crazy.
In 2000 people thought it was absurd to put PHone features in the DNS. We were pilloried in the local press for this. I think we counted no less than 60 negative stories. One particularly vocal critic went on to say that “we [the Philippines] would become the laughingstock of asia”. Yet a few months back we saw ICANN issue not just one but two domains for phones - the .mobi and .tel domains!

And in ‘99, fellow ccTLDs were panicking as governments hovered above, threatening to seize control of “the national public resource”. A few actually signed tri-partite contracts with their government and ICANN. So it’s quite interesting to spot the bellwether signals that show change is in the air. The first was Paul Verhoef’s statement in Cape Town that ICANN will not intervene in the event of a dispute between the ccTLD and the Government. Then, less than 2 months ago, the Bush Government went out and said that the US will never relinquish control of the Root Servers. Now we see the University of Ottawa Law Journal publsh a paper, that essentially says “there is no point in the Government regulating its ccTLD”. Beautiful.

The paper is available here.

Here is an excerpt:

Several arguments can be brought forward in favour of increased gov-
ernment regulation of CIRA and of the .ca domain-name space. Yet this paper
argues that none of these arguments is really strong enough to warrant govern-
ment regulation. Such arguments as the qualification of ccTLDs as national or
public resources are weakened by examples of countries “selling out” their
domain names and marketing them as generic names. While domain names are
important for internet communication in general, specific domain names, such as
.ca, are not. Therefore, they cannot be seen as a public resource. Another argu-
ment against government intervention is that there are already policies and pro-
cedures in place like the CIRA dispute-resolution process that deal with certain
issues arising in the context of domain names.

Furthermore, government regulation cannot be justified on accountabil-
ity grounds. Even if domain registries do in fact make public policies, the power
to make such policies is a consequence of users allowing their computers to “lis-
ten” to their name servers and of users thereby assenting to the way that domain
registries administer the name space. Given the fact that the infrastructure con-
fers such a built-in freedom of choice, governments should allow the system to
regulate itself and should abstain from imposing their own representative
democracy over the existing grass-roots, democratic architecture of the DNS.

If the Canadian government were nevertheless to choose to regulate, it
would face some further difficulties. Legislation can effectively only be passed
within the boundaries already set by ICANN. Furthermore, as with many internet-
related issues, government regulation of a particular phenomenon within cyber-
space such as ccTLDs poses the problem of harmonizing this new and specific
regulation with the existing general law. Contracts, as a different way of influ-
encing CIRA in order to meet regulatory objectives, suffer from the same fault of
not involving ICANN and of therefore facing restrictions set by ICANN’s delega-
tion policies. Furthermore, if one justifies contractual regulation with the argu-
ment that CIRA administers a public resource and makes public policy, then the
question arises of whether such regulation can legally be delegated by entering
into contracts without greater public accountability and control.