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Zak Muscovitch at DomainConvergence 2008

Zak Muscovitch at DomainConvergence 2008

Guest contributor Zak Muscovitch is a domain name lawyer, based in Toronto, Ontario, Canada. He has been practicing domain name law for over ten years and is now running for the election for a seat on the CIRA Board of Directors. Go to http://www.DNattorney.com and http://zak-for-cira.ca/ for more information.

The Canadian Internet Registration Authority (“CIRA”) operates Canada’s .CA domain name registry in the “public interest”. Where does this authority come from and what is the “public interest”? During the current 2010 election for CIRA’s Board of Directors, these questions should be raised and debated. CIRA has an important role to fill as the operational manager of the registry, but has an equally important role to fill in terms of governing the .CA space in the public interest.

Read the full article after the jump.

When CIRA was incorporated as a Canadian federal corporation without share capital (otherwise known as a not-for-profit corporation) on December 30, 1998, there was no mention of “the public interest” in its formal objectives as filed with Industry Canada. CIRA’s formal objectives were:

a) to act as the registry for the .CA Internet domain;

b) to provide professional registry services comparable to other major national and international Internet registries;

c) to develop and carry out any other Internet-related registration activities in Canada; and

d) to do all such other things as are incidental or conducive to the attainment of the above objects.

In 2006, CIRA made apparently minor revisions to their filed objectives with Industry Canada, so that c), above, now read;

“to develop, carry out and/or support any other Internet-related activities in Canada”.

The change is small, but noteworthy. One can see that “support” of “any internet-related activities” was added, ostensibly expanding CIRA’a objectives to include broader involvement and support in anything Internet related, not just registration related. This is the foundation for CIRA’s mandate to be actively involved in supporting Internet related activities in Canada. But there was still no mention of the “public interest” in CIRA’s formal objectives. So where does the “public interest” come into play for CIRA?

On March 11, 1999, Michael Binder, Assistant Deputy Minister Spectrum, Information Technologies and Telecommunications (Industry Canada), wrote a letter to Rob Hall, then Chairman of the Board of CIRA, to thank John Demco for his management of the registry for the previous ten years, to congratulate CIRA on its incorporation, and to “recognize CIRA as the administrator of the .ca domain space” (the “Binder Letter”).

The Binder Letter essentially confirmed that the Government of Canada was permitting CIRA to run the registry and that CIRA was expected to adopt certain principles in its operation. The term “public interest” however, did not appear in this letter. Rather, the term “public resource” was used in the following manner:

“The .CA domain space is a key public resource, helping to promote the development of electronic commerce in Canada and important to our country’s future social and economic development”.

The term “public resource” was used within a context that suggested that .CA domain names had two important roles to play, which were both in the public interest;

a) economic development through the development of Internet businesses for wealth creation; and

b) social development so Canada could fulfill its aspirations as a society.

Accordingly, even though the term, “public interest” was not expressly used by Industry Canada in confirming CIRA’s mandate, it was nonetheless made clear CIRA was to operate the .CA registry with this combination of public interest priorities in mind; namely economic and social development.

The first express use of the term “public interest” as it relates to CIRA, appeared shortly thereafter. On October 10, 2000, Industry Canada confirmed to the Internet Corporation for Assigned Names and Numbers (“ICANN”), that CIRA was formally being designated as Canada’s administrator of the .CA registry. In this letter, Industry Canada expressly confirmed that CIRA was to operate in the “public interest”:

This agreement provides that the Government of Canada will designate CIRA to be the new administrator of the .ca and that CIRA will manage the .ca in accordance with principles set by the Government of Canada in the March 11, 1999 letter referred to above and any additional principles that are in the public interest and reasonable. [emphasis added]

The “agreement” referred to by Industry Canada, above, was the “Umbrella Agreement” wherein UBC (the former .CA administrator under the leadership of John Demco), the Government of Canada, and CIRA, agreed on the transition to administration of the .CA registry by CIRA. The Umbrella Agreement expressly made reference to both CIRA being mandated to operate the .CA registry as a “public resource” and in the “public interest”.

The Umbrella Agreement expressly confirmed that the “public interest”, as originally expressed in the Binder Letter, involved both a concern for economic and social development:

“the parties are of the view that the .ca domain space should be developed as a key public resource for social and economic development for all Canadians”. [emphasis added]

The Umbrella Agreement further confirmed that in accordance with Industry Canada’s mandate to CIRA of October 10, 1999:

“CIRA was incorporated as a not-for-profit corporation with the intention of managing the .ca domain space in the public interest”. [emphasis added]

The next appearance of the express use of the term, “public interest”, as it relates to CIRA, appeared in the “Principles for the Delegation and Administration of Country Code Top Level Domain Names”, Presented by ICANN’s Governmental Advisory Committee on February 23, 2000 (the “GAC Principles”). This document’s objective was to suggest principles that will assist in the development of best practice for the delegation and administration of ccTLDs (country code top-level domain names, such as .CA).

Section 5.1 of the GAC Principles stated:

The relevant government or public authority ultimately represents the interests of the people of the country or territory for which the ccTLD has been delegated. Accordingly, the role of the relevant government or public authority is to ensure that the ccTLD is being administered in the public interest, whilst taking into consideration issues of public policy and relevant law and regulation. [emphasis added]

The GAC Principles also laid out some broader principles that emphasized that while a ccTLD manager such as CIRA has a duty to serve the public interest of its local community, it also has a duty to the global Internet community:

The Internet has evolved from a tool reserved for computer and networking research, to a global medium for commerce, education, and communication. The new realities of the Internet, including its increased importance as a vehicle for national economic growth, and the expanding and more diverse nature of the Internet community necessitated evolution in the traditional means of managing and administering Internet technical functions.

The manager of a ccTLD performs a public service on behalf of the relevant local community and as such the designated manager has a duty to serve this community. The designated manager also has a responsibility to the global Internet community. By ‘global Internet community’ we do not mean any specific legal or international entity, but rather we interpret the term to refer to all of those who are affected by, now or in the future, the operation of the relevant TLD, because such operation may impinge on more than one jurisdiction and affect the interests of individuals and entities from both within the relevant country or territory and elsewhere.

Although this was an ICANN document and an ICANN set of principles, CIRA formally and legally adopted certain of the GAC Principles on November 30, 2000. Then Chair of the CIRA Board, Maureen Cubberley, wrote to Michael Roberts, President of ICANN, and stated that “CIRA supports the framework of the GAC principles as a sound basis for the ongoing relationships concerning the delegation and administration of ccTLDs” and confirmed CIRA’s commitment to administering the .CA registry as a “public resource” in accordance with the Binder Letter.

Accordingly, CIRA’s mandate to operate the .CA registry both as a public resource for economic and social development, and in the public interest, has a well established foundation and history. The question then turns to the myriad of possible applications of these important but very broad principles and to what degree CIRA has followed them.

On October 7, 2009, renowned Internet Law expert, Professor Michael Geist, expressed his concern for what he felt was a “Disappearing Public Interest Mandate”. He noted that “CIRA has not done enough to advance the potential social side of the mandate despite [is] and leaving it to its directors to question whether the social contributions found in leading country-code domains around the world are even part of CIRA’s mandate.” This followed Professor Geist’s previous Blog posting and Toronto Star article wherein he questioned “an unmistakable shift toward prioritizing commercial gain over the public interest”. As examples of this shift, Professor Geist noted a “decision to effectively terminate plans to create an external, public interest body to address “excess” funds”, a decision to “expand CIRA’s registry services to new generic top-level domains”, and “killed a planned submission to the CRTC’s net neutrality hearings”.

In response to Professor Geist, CIRA Chief Executive Office, Byron Holland, disputed Professor Geist’s observations while confirming that “the dot-ca domain is essential to social and economic development within Canada, and we take our mandate of effective stewardship of this key public resource very seriously”. Mr. Holland stated that CIRA “[had] not abandoned plans to actively pursue other public-interest elements of [CIRA’s] mandate”, but noted “[CIRA has] been steadily building [a] reserve but [CIRA] is not quite there yet”.

Mr. Holland also noted that, “CIRA is pursuing additional sources of revenue from other potential registry services to ensure that we have the funds necessary to live up to our stated operational obligations and increased activity in the public interest side of the Canadian domain space.”

Accordingly, what can be seen here, is the struggle to follow both tracks that the Government of Canada mandated CIRA to follow, namely social and economic development, in the public interest. Professor Geist has correctly pointed out that social development in the public interest, is a key component of Canada’s mandate to CIRA, and yet there is scarce evidence that CIRA has embarked on what could be considered an appropriately ambitious course. Professor Geist cites the fact that  “other countries have used their domain name authorities to fund research, engage in public policy, or even grant every citizen the right to a domain name at no cost”, yet Canada appears to have not pursued any of these social development opportunities in any substantial manner.

On the other hand, Mr. Holland correctly points out that in order to fulfill Canada’s mandate to CIRA to engage in social development, CIRA must raise funds from economic development opportunities, including managing CIRA with “reliance on market forces and private sector leadership”, as required in the Binder letter. CIRA cannot of course make any substantial headway into social development projects without adequate resources, and therefore the exploration of revenue generation opportunities is required and closely tied to CIRA’s mandate of social development.

Nevertheless, an election is now underway for the Board of Directors of CIRA, and it is imperative, indeed it is in the public interest, for all concerned to vigorously debate how CIRA can better follow the two tracks of social and economic development mandated by the Government of Canada by seeking and applying all appropriate sources of revenue.

CIRA is in an enviable position of being able to realize reoccurring revenues from its monopoly over .CA registrations. It gets $8.50 year after year, for each .CA registered. CIRA currently has nearly 1.5 million .CA’s registered. By promoting the .CA registry and by increasing access to .CA domain names in a manner consistent with CIRA’s mandate, CIRA could potentially reap millions more on an annual basis that it could, and should, apply to ambitious social and economic development projects. The nature of such projects should be debated and raised in the election with all ideas put on the table, from free domain names for all Canadians, to a special fund for Canadian Internet entrepreneurs.

As someone standing for election for the single public seat available this year on the CIRA Board, I intend to continue to raise these issues in public and would like for others to do the same.

Zak Muscovitch is a Canadian domain name lawyer and his CIRA election web site is zak-for-cira.ca.

(c) 2010 DomainNameNews.com

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