[4] [Editor's Note: In Oct. 1998, U.S. Congressman Thomas Bliley
   raised a number of questions concerning ICANN in letters to the
   Department of Commerce and to the White House. Following are two
   answers he received in response.]

1) Letter from the D.O.C.

UNITED STATES DEPARTMENT OF COMMERCE 
Office of the General Counsel 
Washington, D. C. 20230 

                      November 5,1998 

The Honorable Thomas J. Bliley, Jr. 
Chairman 
Committee on Commerce 
House of Representatives 
Washington, DC 205 15-6115 

Dear Chairman Bliley: 

	Thank you for your October 15th letter to Secretary Daley
expressing your continued interest in efforts to privatize management
of the Internet domain name system (DNS) and requesting information
about the Department's role in these efforts. Secretary Daley asked me
to respond to your questions and concerns on the Department's behalf.  
The Department of Commerce has been a strong proponent of the
Administration's view that the private sector should continue to lead
the expansion of the Internet. To that end, the Department has
supported the efforts of the private sector to develop mechanisms to
facilitate the successful operation of the DNS. At the same time, the
Department has recognized the need to ensure stability and continuity
in the operation of the Internet during the transfer of DNS management
to the private sector. These beliefs formed the basis for the
Administration's policy statement, "Management of Internet Names and
Addresses" (the "White Paper"). The White Paper envisioned that the
private sector would create a new, not-for profit corporation to
undertake DNS management. In her testimony before the Subcommittee on
Telecommunications, Trade and Consumer Protection in June and
subsequent answers to the Subcommittee's follow-up questions, Becky
Burr of the National Telecommunications and Information Administration
(NTIA) reiterated the Department's commitment to private sector
leadership in this area.

	Consistent with the White Paper approach, the Department
encouraged and supported all private sector efforts to create a new,
not-for-profit corporation for DNS management, but did not endorse or
direct any of them. The Department repeatedly and publicly encouraged
all Internet stakeholders, including the Internet Assigned Numbers
Authority (IANA), to participate in an open, consensus-driven process.
It would have been inappropriate, however, for the U. S. Government to
dictate to the private sector the method or process by which they
should participate. Thus, aside from encouraging all parties to
conduct their processes in an open and inclusive manner, the
Department did not direct the type of process in which the private
sector should engage to reach consensus.

	For example, Commerce employees, including Ms. Burr, attended
the meeting of the International Forum for the White Paper (IFWP) in
Reston, Virginia in July. The President's domestic policy advisor, Ira
Magaziner, spoke at the Reston IFWP meeting, as well as at the IFWP
meeting held in Geneva. At these meetings, Ms. Burr and Mr. Magaziner
encouraged IFWP organizers to include the more traditional Internet
community in its processes, and encouraged the Internet technical
community to participate in the IFWP meetings. The Department
understands that the late Dr. Jon Postel, Director of the Information
Sciences Institute (ISI) of the University of Southern California and
Director of IANA, personally participated in the IFWP meeting in
Geneva, and that he was represented at all of the other IFWP meetings.
Based on this understanding, the Department does not share your view
that IANA did not meaningfully participate in the IFWP process.

	It is the Department's view that the IFWP and the IANA 
processes to develop a proposal for a new, non-profit corporation were
complementary. The IFWP process brought people together physically in
locations around the globe (Reston, Virginia, Geneva, Switzerland,
Buenos Aires, Argentina and Singapore) to discuss issues pertaining to
the creation of the new corporation. The IANA process reached out to
the global community through the Internet to craft and discuss
proposed governing documents for the new corporation.

	The responses of the Department of Commerce to specific
questions appear below. For ease of reference, we have included your
questions in the text of the Department's responses.

1. Please provide the Committee with an explanation, including
citations to relevant statutes, of the Administration's authority
over management of the Internet. In particular, please explain: (1)
the Department of Commerce's authority to assume the NSF cooperative
agreement with NSI; and (2) the Department of Commerce's authority to
transfer responsibility for the management of the DNS to the private
sector.

	As noted in the White Paper, much of the U. S. Government's
initial investment and oversight over the Internet was conducted
through research and scientific agencies, including the Department of
Defense's Advanced Research Projects Agency (DARPA) and the National
Science Foundation (NSF). See White Paper, 63 Fed. Reg. 3 1741-42
(1998). In 1992, Congress gave NSF the statutory authority to permit
commercial activity over what was to become known as the Internet. See
Section 4 (9) of the Scientific and Advanced Technology Act of 1992,
Pub.  L. No. 102-476, 106 Stat. 2297,230O (1992) (codified at 42 U. S.
C. 9 1862( g)). Major components of the domain name system are still
performed by, or subject to, agreements with agencies of the U. S.
Government, including the cooperative agreement with Network
Solutions, Inc. (NSI) for domain name registration services.

	The U. S. Government, however, recognizes that the Internet is
rapidly becoming an international medium for commerce, education and
communications and that Internet governance and technical functions
should evolve to meet the new reality. In recognition of the changing
nature of the Internet from a U. S. research-based tool to a dynamic
medium for business and commerce, the President on July 1, 1997,
directed the Secretary of Commerce to support efforts to make the
governance of the domain system private and competitive. This
directive recognizes the Department of Commerce's broad authority to
foster, promote, and develop foreign and domestic commerce. See 15 U.
S. C. 0 1512.

2. Specifically, NSF transferred the authority and the responsibility
for administering its cooperative agreement with NSI to the Department
of Commerce under the authority of section 1870 of the National
Science Foundation Act of 1950. See 42 U. S. C. 1870. Among other
things, this statutory provision authorizes NSF to enter into
arrangements with other government agencies to perform any activity
that NSF is authorized to perform. Moreover, NTIA is specifically
authorized to coordinate the telecommunications activities of the
Executive Branch and assist in the formulation of policies and
standards for those activities including, but not limited to,
considerations of interoperability, privacy, security, spectrum use,
and emergency readiness. 47 U. S. C. 5 902(b)(2)(H). Attached please
find the interagency agreement between NSF and the Department in which
the Department assumes responsibility for the cooperative agreement.

	As noted in the White Paper and as reiterated by Ms. Burr in
answers to questions from the Telecommunications Subcommittee, the
Department of Commerce contemplates entering an agreement (or
agreements) with a not-for-profit corporation that would address the
management of certain DNS technical functions. These functions include
the assignment of numerical addresses to Internet users, the
management of the system of registering names for Internet users, the
operation of the Internet root server system, and the coordination of
protocol assignment.  The Department of Commerce, like other Federal
agencies, has a number of congressionally authorized mechanisms for
entering into agreements with third parties, including contracts,
grants, joint projects, and cooperative agreements.

3. Given IANA's historical role in the operation of the Internet and
its role in establishing a new management structure, please describe
the Department of Commerce's efforts to encourage IANA's meaningful
participation in the IFWP process. Additionally, please describe the
Department's knowledge and/or involvement in IANA's decision to
submit its own proposal. Please provide all records relating to IANA's
participation in the IFWP or IANA's decision to submit a separate
proposal.

	Through the testimony of Anthony Rutkowski, the Department of
Commerce learned of the formation of the IFWP and its plans to hold a
meeting in Reston, Virginia on June 10, 1998, at the Subcommittee
hearing on the future of the domain name system. In telephone
conversations with Dr. Postel on June 11, 1998 and June 29, 1998 Ms.
Burr encouraged IANA's active participation in any initiative that met
the White Paper's criteria of openness and inclusiveness to the
diverse interests of the Internet community. Dr. Postel indicated that
he would be unable to participate in the Reston meeting, but that IANA
would be represented there.  He also stated that he would personally
attend the next IFWP meeting scheduled in Geneva on July, 24-25. It is
our understanding that IANA representatives did participate in all
meetings of the IFWP.

	On July 31, 1998, Joe Sims, IANA's legal counsel, sent an
e-mail to Ms. Burr describing a telephone conversation he had with
IFWP organizer John Wood. In the message, Mr. Sims indicated that the
IFWP was organizing a final "wrap-up" meeting for early September to
bring closure to the documents on which the group had been working. It
was rumored in public accounts that IANA would not be participating in
the IFWP "wrap up" meeting. As a result, Ms. Burr sent an e-mail to
Mr. Sims on August 20, 1998 expressing concern about IANA's
participation in the meeting. Mr. Sims responded to Ms. Burr's e-mail
on August 22, 1998, indicating that IANA was in discussions with IFWP
organizer Larry Lessig. No further action was taken by Ms. Burr.  
Department personnel were not involved in IANA's decision to submit a
separate proposal for the creation of the new non-profit contemplated
by the White Paper. Department personnel, however, did monitor IANA's
open and iterative process for drafting and revising proposed by-laws
for a new corporation throughout the summer via IANA's web site at
http://www.iana.org. Successive draft by-laws for the corporation were
posted and a discussion mailing list was created to receive public
comments on the drafts. IANA postings and mailing lists were open to
all interested parties, including members of the IFWP, and generated
significant on-line comment and discussion. We understand this
discussion was used to modify later drafts.

	Enclosed please find records responsive to this question. 

4. Why is the Department of Commerce's comment period so short? Why did
the Department provide just six full business days for the public to
analyze the proposals and provide comment ? Please explain the
Department's regulations and guidance governing public comment periods
generally and in relation to the consideration of the four DNS
proposals together with the relevant regulations and guidance.

	The Department of Commerce was under no legal obligation to
make the various proposals for a new, non-profit corporation available
for public comment. These proposals were not rulemakings subject to
the requirements of the Administrative Procedures Act or otherwise
subject to a requirement for public comment.

	Nevertheless, to continue in the spirit of openness and
transparency begun by the White Paper process, the Department posted
for public review and comment all submissions concerning the private
sector initiatives for the creation of a new, non-profit corporation.
In deciding on a ten-day comment period, the Department balanced the
desire for public comment with the need to move expeditiously toward
establishing a relationship with a new non-profit corporation to
manage DNS functions. The ten-day period seemed a reasonable balance
of these two purposes.  In those ten days, the Department received
over 150 comments on the various proposals.

	Under the Department's regulations, only rulemakings under
section 553 of the Administrative Procedures Act, 5 U. S. C. 0 553,
are subject to a requirement for public comment.  See E. O. 12866,
section 6( a)( l). Executive Order 12866 established as Administration
policy that the public should usually be provided a 60-day comment
period on proposed regulations subject to 5 U. S. C. 0 553.

5. Did the Department of Commerce have any involvement in the
consideration or selection of ICANN's proposed interim board members?
If so, please describe the Department's involvement and list and
describe any communications the Department had with the following
people or entities regarding the consideration or selection of the
proposed interim board members prior to the announcement of the
proposed interim board members: (1) IANA or its representatives; (2)
the proposed interim board members; (3) representatives of foreign
governments, international organizations, or non-governmental
organizations; (4) other individuals and organizations outside the U.
S. government. Please provide all records relating to such
communications (whether written, electronic or oral).

	Department of Commerce personnel did not have any involvement
in the consideration or selection of proposed ICANN interim board
members. Consistent with the White Paper, the Department of Commerce
supported the private sector's efforts to form a new, non-profit
corporation, but did not select or endorse any proposed ICANN board
members. Moreover, the Department was well aware of its legal limits
regarding actions that could be interpreted to suggest the formation
of government-chartered or sponsored corporation. That is not to say
that various private sector and governmental interests did not attempt
to seek guidance from Department of Commerce personnel during this
process. As described below, Departmental personnel had the following
communications on this subject:

(1) To the best of her recollection, Ms. Burr spoke with Dr. Jon
Postel and Ron Ohlander, Deputy Director of ISI, along with IANA's
attorney Joe Sims, via telephone on one or two occasions during the
first two weeks of August. During these conversations Dr. Postel
mentioned that discussions about an interim board were underway. No
specific names of interim board candidates were discussed between Ms.
Burr and IANA or its representatives. Ms. Burr, however, specifically
encouraged IANA to seek input on the issue of the interim board
selection from some of its critics, citing Jay Fenello, President of
Iperdome, as an example of an individual committed to the development
of a new, DNS management organization but also a critic of the IANA
process.

	To the best of her recollection, during the week of September
21, 1998, Ms. Burr received a telephone call from Mr. Sims, who
reported that the European Commission was "insisting" on a particular
candidate for the interim board. Mr. Sims inquired as to whether the
United States had a position with respect to this potential board
member. Ms. Burr responded, after discussion with Mr. Magaziner, that
the U. S. Government had no position as to possible candidates for an
interim board and that the Administration believed that no government
had the right to dictate to the private sector the selection of
candidates to the board of directors.

(2) The proposed interim board members. Department of Commerce
officials had no communications with proposed interim board members.

(3) Representatives of foreign governments. To the best of her
recollection on two occasions between September 7, 1998 and September
18, 1998, Ms. Burr spoke with Christopher Wilkinson, Adviser,
Directorate-General XIII, European Commission, regarding the ICANN
board. Mr. Wilkinson indicated that the Commission had in mind several
candidates for the interim board of directors. On both occasions, Ms.
Burr suggested that any European recommendations be sent directly to
Mr. Sims, Dr. Postel and IFWP organizers.

	On September 9, 1998 Ms. Burr and Karen Rose,
Telecommunications Policy Specialist, Office of International Affairs,
NTIA, met with Michelle D'Aurey and Janis Doran, representatives of
the Canadian Government to discuss preparations for the October 7-9
Organization for Economic Cooperation and Development (OECD) meeting
in Ottawa, Canada.  During the course of the conversation, the
Canadian representatives inquired about DNS, and whether a Canadian
would serve on the board of directors of the new corporation. Ms. Burr
and Ms. Rose suggested that any Canadian recommendations should sent
directly to Mr. Sims, Dr. Postel and IFWP organizers. On September 28,
1998, Ms. Doran informed Ms. Burr and Ms. Rose that the Canadian
government had recommended two individuals to IANA representatives.

	Ms. Burr also had a conversation with Australian government
representatives that took place, to the best of her recollection, on
or about July 1, on the White Paper process in general.  The
Australian representatives indicated that they were interested in
proposing an individual for the board of the to-be-formed corporation.
Ms. Burr suggested that they contact Dr. Postel or IFWP organizers
directly regarding this issue.

	In a meeting with Ambassador Aaron on September 25, 1998,
European Union Commissioner Martin Bangemann raised the issue of the
composition of the interim board with the Ambassador. Ambassador
Aaron, in turn, informed Andy Pincus, Department of Commerce General
Counsel, and Ms. Burr of Commissioner Bangemann's interest. Neither
Ms. Burr nor Mr. Pincus transmitted this interest to Dr. Postel or any
other IANA representative.

(4)  Other individuals and organizations outside the U.S. government.
To the best of her recollection during the first week of August, Mr.
Roger Cochetti, Program Director, Policy and Business Planning with
IBM's Internet Division, contacted Ms. Burr and said that he was
working on developing a set of names for the interim board. He
indicated that Esther Dyson was being considered and asked Ms. Burr
for suggestions of potential board members from the civil liberties
and/or public interest community. Consistent with the Department's
position refraining from recommendations, Ms. Burr did not provide Mr.
Cochetti with any suggestions or indicate any preference for potential
interim board members.

	Enclosed please find records responsive to this question.
Please note that Department of Commerce personnel are regularly copied
on various e-mail broadcast lists and, as a result, have received
thousands of unsolicited e-mail messages from the Internet community,
some of which may have reported on IANA's participation in the IFWP
process or the proposed ICANN board. Department of Commerce personnel,
however, did not act on these unsolicited broadcast messages. We are
not providing copies of these unsolicited e-mails at this time,
however, we will do so if the Committee feels that they would be
relevant to its inquiry. I hope that this information addresses your
concerns. The Department of Commerce will gladly keep you and your
staff informed of our progress to privatize management of the Internet
DNS. We are, of course, available at your convenience to discuss the
contents of this reply further. If you have any questions, please do
not hesitate to contact me or Susan Truax at (202) 482-6440.

John Sopko
Chief Counsel for Special Matters

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