Welcome to the New Internet: The Great gTLD Experiment

• Author: Edward Nazzaro
• Position: St. Thomas University School of Law
• Pages: 36-72

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights

rst published online 11 November 2013

36

Note. e author would like to thank his supportive family, including Khrysti, Isabella,

Anthony, and Christine, and the faculty of St. omas University School of Law, espe-

cially Roy Balleste, Professor of Law and Director of the Law Library, former Secretary of

the Global Internet Governance Academic Network (GigaNet), and current member of

ICANN’s Noncommercial Users Stakeholder Group (NCSG), for his tireless eorts in

educating the author on all things Internet Governance and ensuring a thorough article

on this very dicult topic; Professor Amy Ronner for her encouragement; and Gary

Kravitz, Assistant Professor of Legal Writing, for his writing expertise.

Welcome to the New Internet:

The Great gTLD Experiment

E N

St. omas University School of Law

E-mail: treychristy@gmail.com

In 2011, the Internet Corporation for Assigned Names and Numbers (ICANN)

approved a new policy that will result in dramatically increasing the number of

top level domains available on the internet. is article discusses the continuing

development of this policy, intending to serve as a substantial footnote for historical

reference while remaining a forward-looking article to direct the future policy of top

level domain expansion. Using the New Haven Approach, various stakeholders and

their conicting views are analyzed, from commercial interests such as Google and

Amazon, to ICANN’s educational and policy-oriented Non-Commercial Stakehold-

ers Group, as are the current policies and procedures around the application and

assignment process for generic top level domains (gTLDs). is article is a snapshot

of the current state of the internet, looking backwards at the internet’s successes and

failures, and examining what this gTLD expansion means for the future of the in-

ternet. As a policy solution, this article advocates for limiting the number of gTLDs

an entity can own, conserving critical internet resources for developing countries

and other interests, while at the same time forcing applicants to act carefully when

applying for gTLDs.

Keywords: Internet Governance, Internet Regulation, Domain Name Governance,

Electronic Commerce, International Law of Telecommunication, generic Top Level Do-

mains (gTLDs), Cyber Law.

Welcome to the New Internet: The Great gTLD Experiment

Edward Nazzaro

37

e Internet will be changed forever. We’re standing at the cusp of a new era in

online innovation.

Rod Beckstrom, CEO, 2009-2012,

Internet Corporation for Assigned Names and Numbers (ICANN)1

For the wise man looks into space and he knows there is no limited dimension.

Lau Tzu

I. Introduction

e internet2 is so vast and complex—with so much still unknown—that

it has been compared to the Universe.3 However, when it comes to the

unlimited dimensions of space and the technical constraints on the in-

ternet, the analogue ends. e internet as it is now known may seem to

be without beginning or end, but constraints from the physical world,

including the internet’s reliance on physical hardware4 and the known

and limited concept of language,5 prove the internet to be much smaller

than the inniteness of the Universe. Some of these physical and technical

constraints on the internet keeping it grounded in the world of the phys-

1. Julianne Pepitone, Here Comes .NETFLIX: New Web Domain Applications Re-

vealed, CNNM, (June 13, 2012, 6:53 PM), (quoting a statement made by

Beckstrom at a webcast announcement on TLDs in London).

2. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 849 (1997) (explaining “the

internet” and describing it for the rst time in a United States Supreme Court

opinion). “e Internet is an international network of interconnected computers.”

Id.

3. Roy Balleste, e Internet Governance Forum & Technolog y: A Matter of Human

Development, 7 L. L.  T. A. 37 (2007). See generally Reno, 521 U.S.

844, 851 (1997) (calling the internet a “unique medium” and using the term

“cyberspace”). “[e Universe] is a place that oers us experiences similar to those

found in the present development of Internet technologies.” Balleste, supra note 3.

“‘Cyberspace’ . . . [is] located in no particular geographical location but available

to anyone, anywhere in the world, with access to the internet.” Reno, 521 U.S at

851.

4. M M, N  S: T G P  I

G 215 (2010). “[T]he interconnection and routing arrangements

among internet service providers” is a limitation on the supposedly limitless

bounds of the internet. Id.

5. Id. at 215. Mueller relates critical internet resources to “name and number resourc-

es,” that “provide [ ] one of the few points of global leverage over the operation of

the internet . . . .” Id.

The Indonesian Journal of International & Comparative Law Volume I Issue 1 (2014) at 36–72

Edward Nazzaro

38

ical have been dubbed “critical internet resources.”6 One such constraint

is the limited number of generic Top-Level Domains (“gTLDs”), the last

part of a web address after the period.7

e internet developed from a project of the United States Depart-

ment of Defense in the late 1960s, linking computers at research and

educational institutions across the United States and several North Atlan-

tic Treaty Organization member-countries.8 Initially a private network,

the internet exploded with activity during the early 1990s when the Sci-

entic and Advanced Technology Act of 19929 opened internet access

to the public, allowing commercial activity.10 On January 12, 2012, the

start of another potential internet explosion occurred when the Internet

Corporation for Assigned Names and Numbers (“ICANN”) opened up

a whole new frontier by accepting applications for gTLDs, giving rights

to any applicant to stake a claim to a part of this vast, yet nite, area of

6. T W G  I G (WGIG), R  

W G  I G ¶ 13 (June 2005), available at

http://www.wgig.org/docs/WGIGREPORT.pdf [hereinafter Report of the Working

Group]; Mueller, supra note 4, at. 215 (discussing the origin of “the term critical

Internet resources”); Roy Balleste, Persuasions and Exhortations: Acknowledging In-

ternet Governance and Human Dignity for All, 38 S J. I’ L.  C.

227, 227 (2011). “[C]ritical Internet resources. . . include [ ] administration of

the domain name system and Internet protocol addresses (IP addresses), adminis-

tration of the root server system, technical standards, peering and interconnection,

telecommunications infrastructure, including innovative and convergent technol-

ogies, as well as multilingualization.” Report of the Working Group, supra note 6.

e Report stated that the policy behind top-level domain expansion needed to

be developed and had a “signicant impact on key issues, such as the equitable

distribution of resources, access for all and multilingualism.” Id. at ¶ 21. e topic

of Internet Governance includes the allocation of these critical internet resources,

which includes not only the creation, but management of TLDs. Balleste, supra

note 6.

7. G S, E C 67 (9th ed., 2011). “e rightmost

part of a domain name is called a top-level domain . . . .” Id.

8. Alexandra Paslawsky, e Growth of Social Media Norms and Governments’ Attempts

at Regulation, 35 F I’ L.J. 1485, 1493–94 (2012).

9. Scientic and Advanced Technology Act of 1992, PL 102–476, October 23, 1992,

106 Stat 2297.

10. Paslawsky, supra note 8, at. 1493-94 (2012). “is allowed for the privatization of

the Internet and resulted in its extensive development.” Id.