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Order in Economic Solutions, Inc. v. ICANN
(10 November 2000)



  UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ECONOMIC SOLUTIONS, INC.,

Plaintiff,

v.

INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS,

Defendants.

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No. 4:00CV1785-DJS

DECLARATION OF LOUIS TOUTON

1. I am the vice-president, secretary and general counsel of the Internet Corporation for Assigned Names and Numbers ("ICANN"), the defendant in this action. I have personal knowledge of the matters set forth herein and am competent to testify to those matters. I make this declaration in connection with ICANN's opposition to plaintiff's application for temporary restraining order.

Jurisdictional Issues

2. ICANN is a not-for-profit corporation organized under the laws of the State of California. Its principal (and only) place of business is in Marina del Rey, which is in Los Angeles County, California. ICANN is the entity that is working with the United States Department of Commerce to privatize certain the technical-management functions related to the Internet's domain name system, which presently are performed by the United States Department of Commerce or its contractors. Background on the privatization of the Internet is available in a publication published by the Department of Commerce on June 5, 1998 entitled Management of Internet Names and Addresses and is available at 63 Fed. Reg. 31741 (1998). One of ICANN's goals is to provide a forum for the Internet community to discuss issues regarding the Internet's technical management and to promote consensus within the community regarding those issues.

3. ICANN has no assets in the State of Missouri. It does not solicit any business in Missouri. It does not sell any goods or services in Missouri. It does not have a bank account in Missouri. In fact, I am unaware that anybody associated with ICANN has ever been to Missouri in connection with ICANN's business. Nobody from ICANN has met personally with any of plaintiff's representatives, in Missouri or elsewhere.

4. ICANN maintains a website that is located at http://www.icann.org. That website is operated from a single web server physically located in Marina del Rey, California. The website contains a wealth of information about ICANN, about the people who work for ICANN, and about the projects that ICANN has undertaken in connection with the Internet. The website also contains "links" to other information that is related to ICANN's activities. ICANN does not offer anything for sale on its website; in fact, ICANN does not sell anything.

5. One of the features of ICANN's website is a public comment forum facility where users of the Internet can post comments about technical-management issues of concern to them. (Actually, forums on various topics are started and stopped as issues arise within the community.) A public comment forum is essentially a bulletin board where people can make "postings" and other people can respond to those "postings." ICANN serves as the "host" of these fora in the sense that ICANN provides a computer connected to the Internet that collects the comments and displays them on the ICANN website. This computer (ICANN's web server) is physically located in Marina del Rey, California. ICANN from time-to-time notifies the entire Internet community that people may, if they wish, send comments to ICANN concerning its current and proposed activities. Those comments are automatically posted so that they may be viewed electronically.

Background on ICANN and its "Authority"

6. ICANN was incorporated on September 30, 1998. In November 1998, ICANN signed a memorandum of understanding ("MOU") with the United States Department of Commerce, a true and correct copy of which is attached to this declaration as Exhibit A and is also available on ICANN's website at http://www.icann.org/general/icann-mou-25nov98.htm. The purpose of the MOU was to memorialize ICANN's role in the privatization of the technical management of the Internet. In the MOU, the parties agreed to "jointly design, develop and test the mechanisms, methods, and procedures that should be in place and the steps necessary to transition management responsibility for DNS [domain name system] functions now preformed by, or on behalf of, the U.S. Government to a private-sector not-for-profit entity." Under Section VB7 of the MOU, the Department of Commerce specifically assumed responsibility for "general oversight of activities conducted pursuant to this Agreement."

7. The MOU specifically provides in Section VB8 that the Department of Commerce will maintain oversight responsibility of the technical management of the domain name system until such time as further agreements are arranged for the private sector to undertake that management. The Department of Commerce continues today to have authority over the technical management of the domain name system. ICANN cannot, and has no legal authority to, implement new top level domain names; that authority currently resides in the Department of Commerce, as explained further below.

8. For several years, some aspects of the U.S. Government's administration of certain technical issues associated with the Internet was supported by the IANA, which was then a function of the University of Southern California, which had a contract with the U.S. Government to assist in the administration of the Internet (and its predecessor). On February 2, 2000, ICANN presented a proposal to the U.S. Government to perform the IANA function. A true and correct copy of this proposal is available at ICANN's website at http://www.icann.org/general/iana-proposal-02feb00.htm. On February 9, 2000, the U.S. Government and ICANN entered into a contract for the performance of the IANA function. A true and correct copy of that contract is attached to this declaration as Exhibit B (the "IANA Contract"). A copy of the IANA Contract also is available on ICANN's website at http://www.icann.org/general/iana-contract-09feb00.htm.

9. The IANA Contract contains express language that is relevant to plaintiff's claims in this litigation. Two sections are of particular importance to the understanding of the current allocation of authority to establish new top-level domains ("TLDs") or to revise the delegation of existing TLDs. As a technical matter, the delegation of TLDs is established by entries in the "root zone." Section 12.3 provides that ICANN (referred to in the IANA Contract as the contractor) shall perform the following IANA functions:

"Administrative functions associated with root management. This function involves facilitation and coordination of the root zone of the domain name system. It includes receiving requests for and making routine updates of ccTLD contact and nameserver information. It also includes receiving delegation and redelegation requests, investigating the circumstances pertinent to those requests, and reporting on the requests. This function, however, does not include authorizing modifications, additions, or deletions to the root zone file or associated information that constitute delegation or redelegation of top-level domains. The purchase order award will not alter the root system responsibilities defined in Amendment 11 of the Cooperative Agreement."

10. Section 12.5 of the IANA Contract sets forth "performance exclusions":

"The performance of administrative functions associated with root management does not include authorizing modifications, additions, or deletions to the root zone file or associated information that constitute delegation or redelegation of top-level domains. The purchase order award will not alter root system responsibilities defined in Amendment 11 of the Cooperative Agreement."

11. The "root zone file" referenced in the previous paragraphs is maintained by Network Solutions, Inc. ("NSI") in Virginia pursuant to a cooperative agreement between NSI and the Department of Commerce. Amendment 11 to that cooperative agreement, which was effective October 7, 1998, specifically provides that NSI "shall request written direction from an authorized USG [United States Government] official before making or rejecting any modifications, additions or deletions to the root zone file." A true and correct copy of Amendment 11, which remains in force today, is attached to this declaration as Exhibit C and may also be found on the Internet at http://www.networksolutions.com/legal/internic/cooperative-agreement/amendment11.html.

12. One of ICANN's purposes is to try to promote competition and consumer choice in the management of the domain name system, which is one of the principles set forth in Section IIC of the MOU. In this regard, beginning in September 2000 and ending on October 2, 2000, ICANN accepted applications from companies interested in sponsoring or operating new TLDs. ICANN received forty-seven such applications. ICANN presently contemplates that these applications will be discussed by various segments of the Internet community at a in-person public forum to be held November 15, 2000. Based on the public input received in that forum and by other means, as well as evaluation of the applications, the Board is scheduled to consider the applications at the annual Board meeting scheduled to occur on November 16, 2000. During the November 16 meeting, the Board may vote to recommend that negotiations commence with one or more TLD applicants. The Board has not established any minimum or maximum number of applications that will be approved to proceed to this next step. ICANN then contemplates that it would enter into negotiations with the "approved" applicants for the purpose of determining whether contracts could be reached that, in ICANN's judgment, would promote the objectives and principles that ICANN pledged in the MOU to undertake. If some of the applicants proceed to this stage, ICANN would then recommend to the Department of Commerce that it authorize the issuance of these new TLDs and, in particular, instruct NSI to add these new TLDs to the root zone file so that computers connected to the Internet would recognize these new addresses and accurately route information to and from these new addresses.

13. In sum, ICANN has no legal authority presently to authorize the issuance of new TLDs or to change the delegation of those TLDs. ICANN hopes that the Department of Commerce will act on ICANN's recommendations on new TLDs, but the legal authority to make that decision rests with the Department of Commerce.

14. Thus, there are at least three events that must happen before a new TLD (such as ".biz") would be available on the Internet. First, ICANN would have to select the application for negotiations. Second, there would have to be successful negotiations between ICANN and the applicant concerning the terms pursuant to which the TLD would be made available on the Internet, such successful negotiations being in no way assured because they involve complex agreements. Third, the United States Department of Commerce would have to approve ICANN's recommendation and instruct NSI to make the appropriate additions to the root zone file.

15. At its meeting in July 2000, ICANN stated publicly that no new TLDs would be added to the Internet during the remainder of the year 2000. In the event ICANN recommends the addition of new TLDs and the Department of Commerce agrees with that recommendation, ICANN contemplates that the recommended TLDs would become effective sometime during the first six months of the year 2001.

Country Code TLDs and ".bz"

16. In addition to so-called "generic" TLDs such as ".com," ".net," and ".gov," there are also numerous "country code" TLDs, which are commonly referred to as ccTLDs. Examples of ccTLDs are ".us" for the United States, ".uk" for the United Kingdom, and ".bz" for Belize. These ccTLDs are generally used for Internet addresses that are specific to a country based on two-letter codes that appear on a list prepared by the International Organization for Standardization (ISO). Country code TLDs are administered by appointed ccTLD managers, who act as trustees performing a service on behalf of the Internet community, both globally and in the country or territory designated by the country code.

17. A summary of ICANN's practices with respect to ccTLDs is found in a release that ICANN published in May 1999, which is generally referred to as "ICP-1." A true and correct copy of ICP-1 is attached to my declaration as Exhibit D and is also available on ICANN's website at http://www.icann.org/icp/icp-1.htm. The last paragraph of ICP-1 reaffirms the extent of ICANN's authority: "The primary root zone file is currently located in the A root server, which is operated by Network Solutions, Inc. (NSI), under a cooperative agreement with the U.S. Government. Changes to the root zone file are made by NSI according to procedures established under Amendment 11 of that cooperative agreement."

18. Each ccTLD has a technical contact and an administrative contact (in a few cases they are the same person). Pursuant to ICP-1 and other aspects of existing policies and procedures, ICANN can and does make recommendations to the Department of Commerce in regard to replacement of those contacts. As noted above, the IANA Contract provides that ICANN is not authorized to redelegate top-level domains. ICP-1 further states: "TLD Manager responsibility. TLD managers are trustees for the delegated domain, and have a duty to serve the community. The designated manager is the trustee of the TLD for both the nation, in the case of ccTLDs, and the global Internet community. Concerns about 'rights' and 'ownership' of domains are inappropriate. It is appropriate, however, to be concerned about 'responsibilities' and 'service' to the community."

19. ICANN's recommendations regarding the possible replacement of the managers of a ccTLD are based on a number of factors that are designed to ensure the sound operation of the Internet. Although one of those factors is the wishes of the government of the country involved, no foreign government "owns" its ccTLD or can order ICANN or the Department of Commerce to take any actions with respect to a ccTLD. Indeed, under current policy ccTLDs are not "owned" in any sense; they are made available to benefit the entire Internet community.

20. Over the past few years, a few ccTLD managers have attempted to commercialize the ccTLDs they operate in order to make them appear to be similar to "generic" TLDs such as ".com" or ".net." According to the plaintiff, the government of Belize is interested in such commercialization. According to the plaintiff's papers, the government of Belize has signed a contract with the plaintiff pursuant to which the plaintiff will attempt to market the ".bz" ccTLD to businesses throughout the world, which apparently would result in payments to the Country of Belize.

21. Earlier this year, the plaintiff requested that ICANN recognize plaintiff as the administrative and technical contact for ".bz." There are several problems with plaintiff's request. First, although the views of the government of an affected territory are taken into account very seriously in considering redelegation issues, ICANN has received no official word from the government of Belize that it supports this reassignment; it would be dangerous for ICANN to take any action based only on the statements of some entity that claims to have entered into a contractual relationship with a country, even if the contract appeared to be valid. In this instance, despite a longstanding request, ICANN did not even receive the alleged contract until the plaintiff attached it to its pleadings in support of the application for temporary restraining order. But even with the contract, ICANN has no basis to confirm its authenticity or whether the government of Belize stands behind the contract.

22. Second, ICANN is informed and believes that there is, in fact, a dispute as to whether the contract is legitimate. ICANN has received communications from the present administrative and technical contacts of the ".bz" TLD that cast doubt on plaintiff's assertions. Indeed, plaintiff's papers indicate that plaintiff has requested that the current contacts of the ".bz" ccTLD submit resignations to ICANN, but ICANN has not received any such resignations.

23. Third, ICANN has received information that suggests that the Government of Belize does not in fact recognize the existence and enforceability of plaintiff's assertions. Fourth, even if ICANN received the resignations of the current contacts of the ".bz" TLD and the formally expressed wishes of the government of Belize, ICANN would have to consider a number of factors before making any recommendation to the Department of Commerce. Among other things, ICANN considers the effect such a transfer would have on the stability of the Internet, the apparent ability of the proposed transferee(s) to administer the ccTLD, whether the contacts would be equitable and fair to all groups that request names, and whether the proposed transfer would benefit the Internet community as a whole. As stated above, no country "owns" a ccTLD or has the right to order ICANN or the Department of Commerce to change the manner in which the ccTLD is operated.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

This declaration was signed on November 11, 2000 at Marina del Rey, California.


___________________________
Louis Touton


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