Presented to the Chicago Literary Club
February 14, 2011
David Willard Maher
One of the great traditions of the Chicago Literary Club is that essayists generally are not supposed to write about their field of endeavor. We don’t need to hear from lawyers about their favorite lawsuits, or from surgeons about their favorite operations.
I, however, propose to tell you more about my continuing involvement in the inner workings of the Internet, even though that might drive some of you to think about leaving and going to the bar for sustenance. My excuse is that an earlier paper, “Reporting to God”, was well received four years ago (and published by the Club), and that part of my story ended in 1997.
According to the Economist magazine, Jon Postel was “God” on the Internet. Jon, a professor of computer science at the University of Southern California, was trusted by everybody to oversee the technical administration of the Internet. (This was before the explosion in the use of the Internet as a result of the introduction of the World Wide Web.) In the 1990’s, Jon oversaw the assignment of the numbers known as the IP addresses, analogous to telephone numbers. These numbers uniquely identify each network connected to the Internet. Jon also managed the original assignment of the domain names that we use for email addresses and for connection to web sites. Jon and an associate, Paul Mockapetris, had invented the domain name system as a mnemonic device so that Internet users would not have to remember the long strings of numbers that constituted the IP addresses. In the domain name system, there are two kinds of top level domains, the generic or global, e.g., .COM, .ORG, .EDU, and also the two letter country codes, e.g., .UK for Great Britain and .CN for China. Jon Postel handed these out in the early days of the Internet, and was universally respected for his fairness and good judgment. The second level names, the ones to the left of the dot, e.g., “amazon” in “amazon.com” can be registered by anyone on a first come, first served basis. This has led to the problem of the “cybersquatter”, the would-be entrepreneur who registers someone else’s trademark and attempts to profit from it in various ways.
Enough of the technical. This essay is really about my life on the Internet. In 1996, I had been appointed, by Jon Postel and by the Internet Society, a nonprofit professional organization, to a group known as the International Ad Hoc Committee. The Committee consisted of eight engineers from around the world and three lawyers, of whom I was one. The engineers were all members of the Internet Engineering Task Force, the group that promulgates the Internet’s technical protocols, and we three lawyers were trademark practitioners. The Ad Hoc Committee made a number of proposals, including, first, the addition of a few more top level domains, second, the introduction of a competitive structure for the registration of names, and, third, a legal approach to dealing with cybersquatters. These proposals were so sensible and far-reaching that our efforts attracted the attention of the United States government and the European Union, and perhaps more importantly, the attention of some major trademark owners, particularly, AT&T and IBM. We also got the unwanted attention of the then monopolist in the registration system, a company called Network Solutions that was owned by Science Applications International Corporation or SAIC. SAIC is very well connected in the intelligence community, the spooks in Washington. We quickly learned of its political power.
By 1997, these false gods were beginning to take over. In that year, I made three trips around the world, trying to muster international support for the project of the Ad Hoc Committee and six trips to Geneva, Switzerland (in addition to miscellaneous other trips to European cities).
Geneva for a while began to seem like home. It may not be the most interesting city in Europe, but it has its own good qualities, not least of which are the restaurants.
Geneva is also the home of two major UN bodies that I dealt with as part of the Ad Hoc Committee. The International Telecommunications Union and the World Intellectual Property Organization occupy two separate high rise buildings across the street from each other. Both have cafeterias on their top floors and the Telecommunications people have a magnificent view of Mont Blanc from theirs. Both have extensive luncheon menus, with a nice selection of Bordeaux and Burgundies available at modest cost. (In my golden years, when I retire, I may apply for a job as sous chef at the Telecommunications cafeteria.)
On a more serious note, in addition to learning the joys of being a frequent flyer, I was introduced to the complexities of international power politics.
In Singapore, in 1997, I was introduced to Ira Magaziner, the close friend of Bill and Hillary, who had been dramatically unsuccessful in promoting the Clinton health care reforms. As a reward, he had been appointed overseer of the program to take charge of administering the Internet and, specifically, keeping it out of the hands of unsupervised international groups such as the International Ad Hoc Committee. At our meeting, he made it clear that it was his job to take over.
There had always been some federal government involvement in the Internet. Jon Postel’s operations at the University of Southern California were partially funded by the National Science Foundation, the NSF. Magaziner arranged for the NSF to bow out and turn over its oversight functions to the Department of Commerce. Just before this, the NSF had allowed Network Solutions to start charging $50 per name per year for domain name registrations. Previously, there had been no charge, and it made sense to require some payment, but the $50 bore no relation to the cost of registration. This was simply a bonanza for Network Solutions and was accomplished without competitive bidding. It appeared to me clear evidence of the political clout of SAIC, the parent company of Network Solutions.
Magaziner set out to create a new California based nonprofit corporation, the Internet Corporation for Assigned Names and Numbers, better known as ICANN. The plan was that ICANN would take over the essential elements of the program that we had produced at the International Ad Hoc Committee, as well as the functions of Network Solutions, and put the whole bundle under the authority of the Department of Commerce. The Department would then contract out these functions to ICANN.
The mission of the Department of Commerce is the advancement of American commercial interests. Not surprisingly, the interests of U.S. trademark owners have considerable influence, and the trademark owners were deeply concerned that our Ad Hoc Committee proposals did not do enough to protect trademarks. At the same time, the monopoly position of Network Solutions was not congruent with the Department’s goal of fostering competition. To make matters additionally complex, groups purporting to represent the public interest asserted that the Ad Hoc Committee did not represent the full range of the public’s interests in the operation of the Internet. All of the above went up to Capitol Hill to demand satisfaction.
ICANN was the attempt to resolve as many as possible of these conflicting interests. Magaziner and his colleagues believed that a nonprofit corporation, based in California, with an internationally diverse board of directors, would somehow satisfy everybody. The trademark interests would be protected. The engineering community, represented by the Ad Hoc Committee, would have its say. Congress, which generally felt: “it’s our Internet, we invented it, we paid for it, we own it and no bunch of foreigners is going to take it over” would be mollified. The public would have a say in the operation of ICANN, and some compromise structure would be crafted to introduce competition in the market for registering domain names.
The lawyers and lobbyists for the major trademark and brand owners were a major influence in all of these goings-on. I got to know Roger, the principal lobbyist for IBM, and Marilyn, his counterpart at AT&T. I always liked Roger. I felt that he only lied to me when it was necessary. He expressed one of his principal concerns about the protection of IBM’s trademarks by saying “what happens if the Indonesian Bowling Movement wants to register the initials of its name?” This quasi-philosophical question has never been answered. On another occasion, at an ICANN meeting in Los Angeles, he suggested that ICANN should reimburse IBM for its expense in protecting its trademarks on the Internet. An elderly participant in the meeting, who had appeared to be dozing, sat up with a start and said, “Roger, for God’s sake, that’s like food stamps for a giant corporation”. Even Roger was at a loss for words.
Marilyn was a different story. After 12 years, we have become friends, but it was rocky to start with. Marilyn made it clear that it was in the interests of AT&T to block any efforts to add more top level domains until there was some absolutely perfect way of protecting AT&T’s trademarks.
There were substantial amounts of money at stake fueling powerful political forces. Network Solutions, with the backing of SAIC, was fighting desperately to keep its monopoly of registering names. The battle was carried to Capitol Hill and to the Department of Commerce. At the time, the number of Congress people who had even an inkling of how the Internet worked was vanishingly small. In the Department of Commerce, by contrast, there were some very knowledgeable people. One high up administrator, Becky, told me that she and her colleagues recognized the accomplishments of Jon Postel and the engineering community. Becky acknowledged their claims to a continuing involvement in the process, but she also said “we like to humor them by letting them think they run the Internet”. The mailed fist in the velvet glove.
Although the Ad Hoc Committee, with its backing from Jon Postel, had widespread support in the engineering community, it had its detractors. Most important of these was Network Solutions. The Committee had not only recommended the creation of new top level domains that would compete with .COM, but it had also recommended a system for registrations that separated the registries of names from the registrars. The registries are the wholesale providers of registrations in domains such as .COM, .NET, .ORG and .INFO , while the registrars now are companies such as GoDaddy, Tucows and today’s Network Solutions; they are the retailers that deal directly with the Internet user who wants to register a new name to the left of the dot in one of the domains. This was a direct attack on the business plan of Network Solutions, which at that time combined the functions of registry and registrar. Network Solutions supported numerous groups and individuals, often on a clandestine basis, who argued strenuously that the Internet would suffer global breakdown if Network Solutions lost its monopoly. Meanwhile, the profits from their sale of registrations continued to pile up.
Other detractors were individuals who remain etched in my memory.
At a meeting in the Kennedy Center in Cambridge, Massachusetts, I was introduced to a woman from Singapore, Laina, who cordially invited me to be a panelist at a meeting in Hong Kong. She then disinvited me because she did not approve of something the Ad Hoc Committee had proposed. The organizers of the Hong Kong meeting invited me anyway, so I flew off to Hong Kong and spoke my piece on the panel. In the front row of the audience, Laina and her friend, Barbara, sat glowering. In the question and answer session, Laina and Barbara made it clear that they doubted my integrity, intelligence, motives and so forth. They got so wound up that a fellow panelist, a woman engineer whom I had just met, came to my defense and silenced the two. At the cocktail gathering that evening, I went up to my savior and thanked her for being an angel of mercy. She then introduced me to Paul Mockapetris, co-inventor of the domain name system. They kindly invited me to join them the next day on a day trip to Macau, which turned out to be far more enjoyable than being pilloried on the preceding day’s panel.
Laina’s friend, Barbara, was then the president of an organization called CIX. In the 1990’s, CIX was the trade organization for the local entrepreneurs who put together small banks of modems and offered connection service to the public. This was before the consolidation of Internet service providers into the few giant companies like Yahoo, Google, Sprint and Comcast. In its day, CIX played a key role in Internet operations. For some reason, Jon Postel and the Internet Society had not invited CIX, or Barbara, to be members of the Ad Hoc Committee. This was probably one of the few mistakes Jon ever made. Barbara became an implacable enemy of the Committee. I decided to try to do something about it and set up a luncheon meeting with Barbara in Washington. She treated me to a two hour diatribe, the gist of which was that she ran the Internet. Since I was in Washington anyway, I decided to pay a call on Marilyn, the AT&T lobbyist. I told Marilyn of Barbara’s claim. Marilyn gripped the edges of her desk and leaned over towards me, saying, “over my dead body!” I was between the rock, Barbara and CIX, and the hard place, AT&T and Marilyn.
On one of my international trips, I found myself in Beijing as a guest of the People’s Republic, addressing a large conference of Chinese computer engineers. One of my co-panelists, a distinguished engineer, decided to lighten up his highly technical speech with a joke. The Internet works by dividing up messages into packets, and my co-panelist told the audience that the Internet Engineering Task Force had decided to experiment with distributing the packets by carrier pigeon. (This is what passes for humor in the engineering community.) No one in the audience laughed or even smiled. They continued to take their careful notes. I am convinced that somewhere in China in the next few weeks, there was an experiment involving carrier pigeons.
At the same conference, I was in the audience when a group of Chinese officials came up and beckoned me to follow them. We walked through a long series of corridors and wound up in a small conference room. Two of the group, who spoke English, began what seemed to be an aimless conversation with me about the Ad Hoc Committee and China. After about five minutes, I finally got the drift. They were concerned that the Ad Hoc Committee would allow Taiwan to make some kind of claim to the use of the name “China”. Thinking of the necessity of my exit visa, I immediately reassured them that we respected the interests of the Peoples Republic in the use of “China”. It was certainly flattering that they thought that the Ad Hoc Committee had such authority.
The next day, I was invited to attend a meeting of the Chinese Internet authorities with a high level Canadian trade delegation. I showed up at the Ministry office and was ushered into a large conference room with huge overstuffed chairs. I took my place and listened to the conversation that seemed to have a theme, namely, the common interests of the Peoples Republic and Canada in limiting the influence of the United States. I thought of speaking up but decided that it would not help matters. In any event, the Canadians invited me to a party at their Beijing embassy that evening where I was reassured that they were not really anti-American.
The next week was memorable. I left Beijing on a Sunday about noon, and arrived in London on Monday morning. After dinner with a friend in London, I departed for Chicago on Tuesday, arriving on Tuesday afternoon. Wednesday I spent in my office. On Thursday morning I flew to New York to give a speech, and returned to Chicago that evening. Friday I was in my office again, and then, on Saturday afternoon, flew to Brussels. On Monday, I flew to Cairo, where I learned that the human body has its limits. After two days in bed, I got back to Frankfurt and then made it back to Chicago to recuperate.
On another trip to Beijing, I was again with a group of engineers. Our goal was to persuade the Chinese Ministry of Information Industry (the Chinese Internet counterpart to the US Department of Commerce) that it was in the best interests of the Peoples Republic to support a globally interconnected Internet. The Vice Minister was very cordial, and listened attentively to our presentation. At its conclusion, he reminded us, through his interpreter, that there are only four truly global languages, English, Arabic, Spanish and Chinese. With a smile, he said, “At our next visit, we expect that you will be able to speak Chinese”.
In 1998, the Department of Commerce succeeded in creating ICANN and giving it the authority to supervise the technical administration of the Internet. I use the term “technical administration” to distinguish it from issues of content of web sites or messages. In the interests of respect for the First Amendment, ICANN’s mission does not include any control over content.
It took many meetings and conferences all around the world to get ICANN going. Network Solutions continued to do everything in its power to throw a monkey wrench into the gears of progress. SAIC had taken Network Solutions public, garnering hundreds of millions of dollars for SAIC while SAIC retained voting control. Network Solutions argued from many sometimes contradictory standpoints. They claimed proprietary rights in the software that made the Internet work (which was nonsense). They claimed immunity from government interference because they were a government contractor. They claimed immunity from government interference because they were a private company, and so on.
In February, 1998, there was a dramatic collision of powers. Jon Postel had become increasingly weary of the inflated claims of Network Solutions. One day, he was persuaded to change control of many of the root servers – the computers that ultimately manage all the traffic on the Internet. In order to demonstrate his authority, he moved control to his offices at the University of Southern California. Jon was able to do this because of his long-time position as the coordinator of the entire system. Ira Magaziner learned of it while in Switzerland. He got on the phone to Jon and warned him of dire results if the change of control were not reversed immediately. There are disputes as to what was actually said, but I was told by people who should know that Ira told Jon, “There will be federal marshals knocking on your door.” Whether he said or implied that Jon would be arrested is an interesting question. In any event, Jon returned control of the servers to their original operators.
Jon told the University what had happened. The University told him that he was on his own legally. The University declined to engage lawyers to straighten out the question of control of the Internet. As a result, Jon went looking for a lawyer. In his own words, he wanted someone “meaner than a junkyard dog”. He found his lawyer at Jones, Day, a leading Washington law firm. Joe Sims, an eminent antitrust lawyer in the firm, agreed to represent Jon pro bono.
Meanwhile, ICANN made some progress. There were productive meetings in Barcelona, Monterrey, Mexico and Berlin. In Barcelona, in September, 1998, we received the sad news that Jon Postel had died. He had a congenital heart defect and had died in surgery in an attempt to prolong his life. Joe Sims became the lawyer for ICANN, and spent most of the next 12 months battling with Network Solutions over their claims to continue their monopoly. Network Solutions pulled out all the political stops, trying to persuade Congress that ICANN was a bureaucratic monster abusing a shining example of responsible free enterprise. As is often the case when a battle gets to Capitol Hill, you predict the outcome at your peril. Network Solutions wound up being painted as the evil monopolist using stalling tactics to block progress on the Internet. In September, 1999, a settlement was finally reached that incorporated the structure originally proposed by the International Ad Hoc Committee. The monopoly of Network Solutions was broken, but, in 2000, SAIC achieved its final triumph. SAIC managed to unload its prize subsidiary, Network Solutions, to a publicly traded company, VeriSign, for a cool twenty billion dollars at the height of the dot com bubble. VeriSign inherited the forced settlement. As a result, VeriSign is now the registry of the two top level domains, .COM and .NET; it spun off Network Solutions as an independent registrar, a status it currently enjoys as one of the principal retailers dealing with members of the public who want to register a domain name.
ICANN was on its way, and the Ad Hoc Committee dissolved. My own involvement with the Internet was by no means over. I was appointed Vice President – Public Policy of the Internet Society, a post that kept me in the thick of ICANN and Internet politics. There were meetings in Cairo, Yokohama, Stockholm, Paris, Bucharest and Shanghai, culminating in an application by the Internet Society to take over management of the registry of the .ORG top level domain. Part of the 1999 settlement imposed on Network Solutions was a requirement that it spin off one of its original three domains. .COM, .NET and .ORG. Jon Postel’s original plan for these three domains had imposed a very loose scheme for classification of Internet users. .COM was for commercial users, .NET was for network operators, and .ORG was for everything else. These were not legal requirements, and to this day, anyone can register a name in any of the three so long as the name is available, regardless of intended purpose.
Network Solutions had always treated .ORG as a poor relation of the other two. Often persons registering names in .COM or .NET would be given free registrations in .ORG. Not surprisingly, when it came time to decide which domain to spin off, .ORG was the logical candidate. The Internet Society was one of eleven applicants seeking to secure a contract with ICANN (with the blessings of the Commerce Department) to manage the registry of .ORG. I helped prepare the application that turned out to be successful, and, in late 2002, the Internet Society created a new nonprofit corporation called the Public Interest Registry. On January 1, 2003, the new company took over the management of .ORG. I was appointed to the board of directors and served in a volunteer capacity as Chairman for about 18 months. By then, working full time as a volunteer had lost some of it charms, and I was able to get myself hired as Senior Vice President, a paying job, that I still hold.
The new .ORG blossomed under our control. We went from roughly 2 million registrations in 2003 to over 8 million today. Meanwhile, .COM and .NET, still in the hands of VeriSign, have over 100 million names registered. If you add up all the names registered in all the domains, including the country codes, there are over 200 million registrations, worldwide.
The Internet today is vastly different from the Internet that I learned about starting in the early 1990’s. The social media, such as Facebook and Twitter, and the search engines, such as Google and Bing, are making domain names much less relevant than they were 10 years ago. Email is now considered by the younger users to be an old folk’s system. (I have to confess that hurts.) Domain names can now be written in Chinese characters, Cyrillic, Greek, Hebrew, Arabic and dozens of other writing systems.
Some things remain the same. The trademark lawyers are outraged at the proposals for yet more new top level domains. Public interest groups are outraged at the efforts of governments to censor Internet content. Governments are outraged at the leaking of confidential documents.
Also, some basic questions remain unanswered. Who gave the US Commerce Department its authority over the technical administration of the Internet? Until recently, there was tacit agreement among the “Great Powers” that de facto US government control was working well because the system works efficiently, and the US has not abused its power. For example, even though the US does not have diplomatic relations with Cuba and Iran, the US facilitates their connections to the global system. The US State Department once proposed that Yugoslavia be cut off from the Internet during the Balkan wars, but cooler heads prevailed, and it never happened. Still, there are rumblings from China, Brazil, India and some Arab countries that the United Nations might be better suited for this responsibility. The US Congress probably will never allow it in any event.
In addition, the engineering community that invented and built the Internet over 30 years ago still has significant authority over certain essential functions that are totally outside the control of any government and outside the control of ICANN. The lines of demarcation of authority are not clear, and there are some underlying disputes that have never been resolved. Despite these disputes, the engineers and the US government agree strongly on one issue – they don’t want the UN to take over.
But these will be the stories for another chapter. This is a story to be continued.