Passage of the Leahy-Ashcroft Amendment to S. 1609

June 26, 1998

Mr. President: From its origins as a U.S.based research vehicle, the Internet has matured into a democratic, international medium for communication, commerce and education. As the Internet evolves, the traditional means of organizing its technical functions such as the Domain Name System (DNS) need to evolve as well.

It is for this reason, in part, that I viewed S.1609, legislation to authorize the Next Generation Internet (NGI) program, as the appropriate vehicle for my domain name amendment. This amendment is based on S.1727, legislation I introduced on March 6 to authorize the National Research Council (NRC) of the National Academy of Sciences to conduct a comprehensive study of the effects on trademark and intellectual property rights holders of adding new generic top level domain names (gTLDs), and related dispute resolution procedures.

At the outset, I would like to thank Senator Ashcroft, who is a cosponsor of this domain name amendment to S. 1609 as well as a cosponsor of my original domain name bill, S.1727. I would also like to thank Senators Rockefeller, Frist, Hollings and McCain who enabled this domain name amendment to be considered along with S.1609.

On today's Internet, the domain name system (DNS) works through a hierarchy of names. At the top of this hierarchy are a set of Top Level Domains that can be classified into two categories: generic Top Level Domains (gTLD), such as ".gov," ".net," ".com," ".edu," ".org," ".int," and ".mil," and the country code Top Level Domain names, such as ".us" and ".uk". Before each TLD suffix, is a Second Level Domain name.

Since the Internet is an outgrowth of U.S. government investments carried out under agreements with U.S. agencies, major components of the DNS are still performed by or subject to agreements with U.S. agencies. Examples include assignments of numerical addresses to Internet users, management of the system of registering names for Internet users, operation of the root server system, and protocol assignment.

For the past five years, a company based in Herndon, Virginia, named Network Solutions, Inc., has served under a cooperative agreement with the National Science Foundation as the exclusive registry of all second level domain names in several of the gTLDs (e.g., .com, .net, .org, and .edu). This contract ended in March 1998, but the Federal Government has exercised an optional rampdown period that is scheduled to expire in September 1998. With this date quickly approaching, many of us have been concerned about what would happen at the end of that company's exclusive contract. Simply put, how will we avoid chaos on the Internet and the potential risk of multiple registrations of the same domain name for different computers?

On January 30, 1998, the Commerce Department released a "Green Paper", or discussion draft, entitled A Proposal to Improve Technical Management of Internet Names and Addresses, proposing privatization of the management of the DNS through the creation of a new, notforprofit corporation. The Green Paper suggested that during the period of transition to this new, notforprofit corporation, the U.S. Government, in cooperation with IANA, would undertake a process to add up to five new gTLDs to the DNS.

Although adding new gTLDs, as the Green Paper proposed, would allow more competition and more individuals and businesses to obtain addresses that more closely reflect their names and functions, I was concerned as were many businesses, that the increase in gTLDs would make the job of protecting their trademarks from infringement or dilution more difficult. In addition, increasing the number of gTLDs without an efficient dispute resolution mechanism had the potential of fueling litigation and the threat of litigation, with an overall chilling effect on the choice and use of domain names.

The Green Paper properly raised the important questions of how to protect consumers' interests in locating the brand or vendor of their choice on the Internet without being deceived or confused, how to protect companies from having their brand equity diluted in an electronic environment, and how to resolve disputes efficiently and inexpensively. It did not, however, answer these complex and important questions. Dictating the introduction of new gTLDs without analyzing the impact that these new gTLDs would have on trademark and intellectual property rights holders and related dispute resolution procedures seemed like putting the cart before the horse.

The bill that I introduced, S. 1727, was intended to get the horse back in front of the cart. It directs the Secretary of Commerce to request the National Research Council (NRC) of the National Academy of Sciences to conduct a comprehensive study of the effects on trademark and intellectual property rights holders of adding new gTLDs and related dispute resolution procedures. The study shall assess and, as appropriate, make recommendations for policy, practice, or legislative changes regarding:

(1)  the shortterm and longterm effects on the protection of trademark and intellectual property rights and consumer interests of increasing or decreasing the number of gTLDs;

(2)  trademark and intellectual property rights clearance processes for domain names, including whether domain name databases should be readily searchable through a common interface to facilitate the "clearing" of trademarks and intellectual property rights and proposed domain names across a range of gTLDs; identifying what information from domain name databases should be accessible for the "clearing" of trademarks and intellectual property rights; and whether gTLDs registrants should be required to provide certain information;

(3)  domain name trademark and intellectual property rights dispute resolution mechanisms, including how to reduce trademark and intellectual property rights conflicts associated with the addition of any new gTLDs and how to reduce trademark and intellectual property rights conflicts through new technical approaches to Internet addressing;

(4)  choice of law or jurisdiction for resolution of trademark and intellectual property rights disputes relating to domain names, including which jurisdictions should be available for trademark and intellectual property rights owners to file suit to protect their trademarks and intellectual property rights;

(5)  trademark and intellectual property rights infringement liability for registrars, registries, or technical management bodies; and

(6)  shortterm and longterm technical and policy options for Internet addressing schemes and their impact on current trademark and intellectual property issues.

We should understand the effects on trademark and intellectual property rights holders of adding new gTLDs and related dispute resolution procedures before we move to quickly to add significant numbers of new gTLDs. Since its introduction in March, groups such as ATT, Bell Atlantic, Time Warner, the International Trademark Association, and the American Intellectual Property Law Association, have endorsed this legislation reflected in the LeahyAshcroft amendment.

The Administration's White Paper, released on June 5, acknowledges the concerns to be addressed in the study called for in this legislation. The White Paper backed off the Green Paper's earlier suggestion to add five new gTLDs. Instead, the White Paper proposes that the new corporation would be the most appropriate body to make decisions as to how many, if any, new gTLDs should be added once it has global input, including from the study called for in the LeahyAshcroft domain name amendment. Specifically, the White Paper calls upon the World Intellectual Property Organization, inter alia, to "evaluate the effects, based on studies conducted by independent organizations, such as the National Research Council of the National Academy of Sciences, of adding new gTLDs and related dispute resolution procedures on trademark and intellectual property holders."

I commend the Administration for the deliberate approach it has taken to facilitate the withdrawal of the U.S. government from the governance of the Internet and to privatize the management of Internet names and addresses. We should have a Hippocratic Oath for the Internet that before we adopt any new regimen that affects the Internet, we should make sure we are doing no harm to this dynamic medium.

We, in Congress, have not always lived up to the standard of this oath. Passage by an overwhelming vote of the unconstitutional Communications Decency Act to regulate constitutionallyprotected online speech on the Internet is an example of wrongheaded legislation that Congress still has not lived down. Internet users generally remain skeptical about the heavyheaded regulatory actions Congress may take based on bumpersticker politics.

The experience of the Communications Decency Act demonstrates that we should exercise caution in passing new laws for the Internet. This is a global phenomenon and its freedom from regulation has been primarily responsible for its explosive growth. This principle is important as we see increasingly intense disputes over whether or how to regulate this medium. Encouraging free markets and private sector selfregulatory approaches is a particularly American approach.

The best way to "export" our core American values, to preserve the free flow of commerce and individual expression and community selfgovernance on the Internet, is not to declare the Internet a U.S. territory. Rather, we should be seeking to support the growth of the Internet's own selfordering properties, and fostering mechanisms by which policy will be set by groups accountable to all Internet participants on a global basis. If we succeed in creating a decentralized and truly global policymaking apparatus for the Internet, the core values we care most about will in fact propagate across the world.

On a number of issues pertaining to the Internet, from privacy to pornography to online gambling, governments are more and more faced with the question of when to defer to effective private action, rather than regulating in detail in the first instance. The Internet community is rapidly developing new technologies and practices that may well solve many of these new "public policy" problems before we can even begin effectively to debate them.

For example, new labels for web sites will let users know which sites have privacy policies or content they can accept. New software standards will even allow the automated negotiation of privacy or content preferences. Other technologies will allow end users to control what information their web browsers surrender to the sites they visit. And many new types of filters and private sector practices are being deployed to bring the vice of unsolicited commercial Email (spam) under control.

I fully appreciate that we have some way to go before governments can declare the private sector selfgovernance mechanisms of the Internet adequate to solve the complex and multifaceted problems of online privacy or protecting children from inappropriate material. But progress is being made every day, at a rapid pace, thanks to the ingenuity of engineers and concerted actions of public interest advocates and system operators.

We should be trying to persuade other countries to see the virtues of free enterprise and community selfgovernance. We can demonstrate by means of the sheer success of electronic commerce, unconstrained by heavyhanded top down regulation, that those who allow the market to work will be richly rewarded. We can develop new technological means and online trade practices to solve the new public policy problems of the Internet demonstrating in the process that it is best to let those with the greatest stake in solving those problems and in building online commerce and community to attempt to do so in the first instance. We can show that diversity works best to fit individual needs to community rules by allowing a diverse Internet to flourish and using filters and education and navigational aids to help everyone make sure they only go where they want to go and only deal with those they are prepared to trust.

We can, in short, spread the American faith in liberty and the pursuit of happiness by avoiding the futile, topdown lawmaking other countries are so fond of and by demonstrating that an unconstrained Internet will form its own new kind of order and become the best kind of online place for those who participate there. That kind of American leadership cannot be justly accused of being a new form of imperialism. We'll make converts to our values one at a time, throughout the world, by showing the path to greater wealth, and the virtues of greater freedom, by example. And we'll be better able to resist counterproductive local regulation by other countries if we can show that we are not attempting to impose rules of our own on others without their consent.

As we debate new bills that directly or indirectly regulate the Internet and impose U.S. laws on a global medium, we should remember our core values, and try to export those valuesfree speech, freedom to associate, freedom of the press to the rest of the world via the Internet. But the most effective way to do so is by the leadership of our example. By inviting Internet stakeholders to work together and form a new, private, notforprofit corporation to manage the domain name and addressing system so critical to the governance of the Internet, the Administration has set an excellent example, and I commend them for it.