🚀 go-pugleaf

C'est une chose triste, mais c'est vrai qu'il y a des gens dans la Maison
Blanche aux Etats Unis qui veulent que le gouvernement des Etats Unis
controle le gouvernement de l'Internet. Ce document ci-inclus de Tony
Rutkowski est un exemple de l'avis que le gouvernement des EU a recu
de M. Rutkowski et de certains autres pendant l'annee derniere. Il parait
que la Maison Blanche suivra son avis et terminera l'initiative
coopertaive et international de l'IAHC http://www.iahc.org. Vous pouvez
lire vous-meme ce que M. Rutkoski a dit.

-------copie du document suit---------------

           Document available at: <http://www.wia.org/pub/dns-brief.html>
                                                                         
                                 Before the
                                      
        U.S. Department of State, Federal Communications Commission,
        National Telecommunications and Information Administration,
      Register of Copyrights, and the U.S. Patent and Trademark Office
                                      
   
   
   
   
In Re: ESTABLISHMENT OF A                          )
       MEMORANDUM OF UNDERSTANDING                 )
       ON THE GENERIC TOP LEVEL DOMAIN NAME SPACE  )
       OF THE INTERNET DOMAIN NAME SYSTEM          )
                                                   )
       URL:http://www.iahc.org/gTLD-MoU.html       )

   
   
                       Brief of Anthony M. Rutkowski
                                      
   1. This brief is submitted for information purposes to accompany
   actionable matters before the U.S. Department of State, Federal
   Communications Commission, National Telecommunications and Information
   Administration, Register of Copyrights, and the U.S. Patent and
   Trademark Office where the agencies individually or collectively are
   being requested to bar the above captioned instrument from becoming a
   self-enacting international intergovernmental agreement by virtue of
   its submission to and circulation by the International
   Telecommunication Union.
   
   2. Qualifications of the petitioner are well-known and a matter of
   public record. He possesses degrees in both Electrical Engineering and
   Law, was Chief of International Telecommunication Regulations and
   Relations Between Members at the International Telecommunication
   Union, an FCC Engineer, adjunct professor at New York Law School
   teaching the graduate program in international telecommunications law,
   research associate at MIT, has held industry positions with General
   Magic, Sprint, Horizon House, Pan American Engineering, and General
   Electric, has appeared on several occasions as an expert witness
   before committees of the U.S. Congress, and authored scores of related
   published articles and several books.
   
   
   
                                     I.
                                      
 The subject instrument constitutes an intergovernmental agreement effected
under the auspices of major United Nations agencies, with significant force
                      and effect in international law
                                      
   3. This is the first known intergovernmental agreement of any kind
   directly relating to the Internet. The subject instrument is a type of
   formal international agreement circulated for signature by the 185
   member States of the International Telecommunication Union (ITU) - the
   process for which is established and described in the instrument
   itself. The ITU is one of several specialized intergovernmental
   agencies in the United Nations system - historically serving as the
   principal means for public (usually government monopoly)
   telecommunication providers to coordinate their activities
   internationally, for certain standards making activities, and for
   global coordination of radio spectrum use. The subject instrument,
   although without the stature of a treaty because it can also be signed
   by parties other than sovereign States, is clearly an
   intergovernmental agreement that possesses significant binding force
   and effect not only as an obligation of the signatories, but also
   collectively as public international law.
   
   4. Such instruments have been typically used to obtain agreement among
   governments to amend national laws and practices over existing highly
   regulated or monopoly franchises to provide telecommunication services
   and equipment, such as mobile radio equipment. By contrast, the
   provision of Internet services typically are not the subject of
   regulation and control in most countries.
   
   5. This instrument also involves the World Intellectual Property
   Organization (WIPO) - another intergovernmental specialized U.N.
   agency like the ITU - in the creation and maintenance of new global
   intellectual property rights and associated administrative and
   quasi-judicial processes. As such, the instrument's force and effect
   is amplified, and constitutes additional public international law in
   the intellectual property arena.
   
   6. For both the ITU and WIPO, this instrument provide the basis for
   explicit continuing new Internet-related involvement, including
   permanent additional administrative activities and systems for
   maintaining and reporting on the agreements, disputes, and the
   associated body of law. This in turn will be reflected at national
   government levels around the world in related new activities. The
   ultimate total costs and burdens are substantial.
   
   
   
                                    II.
                                      
  The subject instrument contains far-reaching declarations and provisions
   concerning the governance and administration of certain Internet-based
                     services and who may provide them
                                      
   7. Most intergovernmental agreements establish at their outset the
   bases for governmental jurisdiction and basic objectives. The subject
   agreement states:
   
     The following principles are adopted:
     a.the Internet Top Level Domain (TLD) name space is a public
     resource
     and is subject to the public trust;
     b.any administration, use and/or evolution of the Internet TLD
     space is a
     public policy issue and should be carried out in the interests and
     service of the public;
     
   8. The word "public" in the context of telecommunication services has
   been understood since the International Telegraph Convention of Paris,
   1865, to provide a primary basis for government jurisdiction,
   regulation, and in many cases monopoly provision of services, and has
   dramatic implications with respect the application of a panoply of
   international and domestic law. In the subject instrument, this would
   apply to compound names such as "chaos.web" that millions of
   organizations and individuals may choose to construct and
   electronically publish through the Internet as a means for identifying
   a communication, a service, or a network location, as well as those
   who offer this publishing service. There is no basis or precedent
   whatsoever, for designating such names as either a "public resource"
   or "subject to the public trust," or that "any administration, use
   and/or evolution of the Internet TLD space is a public policy issue."
   
   9. The provisions in the subject instrument establish in considerable
   detail not only the bases on which enterprises may offer these
   services and compete, but also an exclusive global legislative and
   administrative institution and mechanisms for authorizing and
   enforcing the provisions, including the intellectual property related
   administrative provisions. The construction is such that the resulting
   institution is effectively shielded from antitrust laws or other
   challenges to its enactments and determinations.
   
   10. Although the present administrative provisions in the subject
   instrument would immediately apply only to new "generic Top Level
   Domain" names, the normative and jurisdictional provisions apply
   broadly to all Internet domain names, and establish a universal model
   of choice by intergovernmental agreement among U.N. agencies.
   
   
   
                                    III.
                                      
   The subject instrument is inappropriate and unnecessary to achieve any
needed legitimate objective, is an impediment to open robust competition in
   providing the Internet services, and is wholly premature at this time
                                      
   11. For the past ten years, the provision of the subject Internet DNS
   services has occurred under jurisdiction and responsibility of the
   United States government, as delegated to third parties. There is no
   compelling reason for immediate change to this arrangement, and very
   few disputes have actually occurred. Although the U.S. government
   chose to originally effect a pyramidal hierarchy of exclusive
   franchises to offer these services, there is no technical or legal
   necessity for this arrangement, although it has remained the dominant
   one, largely because of the U.S. government involvement. Indeed,
   parties over the past five years have proposed or established
   non-exclusive, competitive alternatives, and technical specifications
   and practices could be easily developed for an open, coherent,
   self-organizing architecture that would support a variety of competing
   service providers in a market-oriented approach.
   
   12. However, the subject agreement effectively impedes if not
   precludes such an open market-oriented approach - substituting the
   managed global cartel model created when the Internet was managed by
   U.S. government defense and science agencies. Ironically, not even in
   the highly regulated telecommunications industry, are naming services
   of this nature singled out and made the subject of a detailed
   intergovernmental agreement. Given the preponderant private-sector
   orientation and constant rapid evolution of Internet services, it is
   wholly inappropriate to treat domain names services in this fashion,
   and likely to lead to monopoly arrangements worldwide.
   
   
   
                                    IV.
                                      
The process by which the subject instrument was prepared and is intended to
 be executed, and the associated transfer of existing Federal authority and
                        responsibility, are unlawful
                                      
   13. The subject instrument was prepared by eleven individuals
   collaborating in private for eight weeks as a committee (the Internet
   International Ad Hoc Committee or IAHC) of a U.S-based non-profit
   technical professional organization known as the Internet Society -
   and announced as a finished document ready for execution in February
   1997. Among the eleven people, were staff members from the
   Secretariats of both the ITU and the WIPO, and one employee of the
   National Science Foundation - all of whom were participating
   informally as individuals. Neither any of the individuals in the
   group, nor the non-profit organization, had any known legal authority
   for undertaking the creation of such an instrument.
   
   14. The subject instrument asserts:
   
     This MoU shall enter into force from the date that it has been
     signed
     by both the Internet Assigned Numbers Authority (IANA) and the
     Internet Society (ISOC).
     
   However, the Internet Assigned Numbers Authority does not exist as a
   legal entity, but is the name of an activity of the U.S. government
   performed under contract by the University of Southern California. The
   Internet Society is a non-profit corporation chartered in the District
   of Columbia to be "...operated exclusively for educational, charitable
   and scientific purposes." As such, neither entity can lawfully even
   sign such an instrument, much less possess the authority under
   domestic U.S. or international law to convey it to the ITU to be
   circulated as an intergovernmental agreement.
   
   15. Furthermore, because the legal responsibility for the subject
   matter of the instrument - the existing Internet domain name system
   established pursuant to RFC1591 - has rested with the U.S. government,
   no lawful process has been undertaken to transfer this responsibility
   to any other party.
   
   16. The IAHC as a committee of the Internet Society is certainly free
   to produce private reports or even draft private contractual
   arrangements, as well as cooperate with the ITU on matters affecting
   telecommunication. However, it cannot lawfully effect international
   intergovernmental agreements of this nature nor affect the existing
   rights of other parties.
   
   
   
                                     V.
                                      
 The execution of the subject instrument and subsequent circulation by the
 ITU will cause irreparable harm to plaintiffs pursuing ongoing federal and
                      state litigation in this matter
                                      
   17. Litigation presently exists in both the State of California, and
   the Federal Court System that directly relates to the subject
   instrument. The plaintiffs in those cases assert injuries resulting
   from the subject instrument, and challenge on a number of bases the
   authority of the parties undertaking this instrument. Execution of the
   subject agreement and its subsequent circulation by the ITU to Member
   governments, will cause irreparable harm to the plaintiffs by
   inadvertently denying the claims and rights in multiple national
   jurisdictions worldwide.
   
   
   
                                    VI.
                                      
      Several Federal agencies have explicit delegated Constitutional
                   responsibilities to act in this matter
                                      
   18. The Secretary of State, since the establishment of the Republic,
   has been responsible for "negotiations with public ministers from
   foreign states...or...such other matters respecting foreign affairs as
   the President of the United States shall assign to the department...."
   22 U.S.C. sec. 2656 (1976). Pursuant to that authority, the President
   has directed that:
   
     [W]ith respect to telecommunications, the Secretary of State shall
     exercise primary authority for the conduct of foreign policy,
     including the determination of United States positions and the
     conduct of United States participation in negotiations with foreign
     governments and international bodies. In exercising this
     responsibility the Secretary of State shall coordinate with other
     agencies as appropriate, and in particular, shall give full
     consideration to the Federal Communications Commission's regulatory
     and policy responsibility in this area. Transfer of
     Telecommunications Functions, Exec. Order No. 12046, 43 Fed. Reg.
     13329, note 29 at para. 5-201 as amended by Exec. Order No. 12148,
     44 Fed. Reg. 43239 (1979), reprinted in 47 U.S.C. sec. 303.
     
   19. The International Telecommunication Union and the World
   Intellectual Property Organization are intergovernmental organizations
   established by treaties to which the U.S. is a party, for the purposes
   of conducting and effecting negotiations with public ministers of
   foreign states.
   
   20. It is clear under the Executive Order and other delegated
   authority, that the Department of State, together with the National
   Telecommunications and Information Administration, and the Federal
   Communications Commission with respect to the ITU, and the Register of
   Copyrights and the Patent and Trademark Office with respect to the
   WIPO, have the responsibility to act in this matter, and assure
   minimally that any international agreements involving the ITU or the
   WIPO proceed in a lawful and responsible manner. It is unprecedented
   if not incomprehensible that an agreement of this nature would be
   fashioned and go forward as it has.
   
   
   
                                    VII.
                                      
Any intergovernmental agreement involving the ITU and WIPO, if it is needed
      at all, should proceed lawfully and through public policy making
      proceedings, and allow other market-driven developments to occur
                                      
   21. If indeed any international agreement is believed desirable or
   necessary, it should proceed in the normal and customary manner of
   policy making proceedings by conducting a notice of inquiry and/or
   through public advisory committee - with an opportunity for industry
   and users to comment both on the desirability of the action, as well
   as the specific actions and provisions being proposed.
   
   22. A variety of industry, market-driven, and even governmental
   initiatives are now being considered and undertaken to deal with this
   domain name matter. These efforts include, for example, the
   preparation of technical and legal specifications for open,
   competitive provisioning of DNS services, joint industry-government
   research studies, and the creation of broad new industry institutions.
   It is these kinds of developments through which this matter should be
   dealt, rather than the subject instrument which will significantly
   diminish or even preclude much more market-driven solutions.
   
   2 April 1997
   
   
   
   [signed]
   
   Anthony M. Rutkowski
   
   13102 Weather Vane Way
   Herndon VA 20171
   tel: +1 703.471.0593
   fax: +1 703.471.0596
   email: amr@netmagic.com
     _________________________________________________________________
   
                                      
                                      
                                      
                                      
                                      
     _________________________________________________________________
   
                                  Annex 1
                Service List - Federal Government Officials
                                      
    Department of State
    
   Amb. Vonya B. McCann
   U.S. Coordinator and Director
   Bureau of International Communications and Information Policy
   Department of State
   Washington DC 20520
   fax: 202-647-5957
   
   cc: Richard C. Beaird
   Deputy U.S. Coordinator and Deputy Director
   
    National Telecommunications and Information Administration
    
   Mr. Larry Irving
   Assistant Secretary for Communications and Information
   National Telecommunications and Information Administration
   US Department of Commerce
   14th and Pennsylvania Ave., N.W., Rm 4898
   Washington DC 20230
   fax: 202 482 1635
   
   cc:.Barbara S. Wellbery
   Chief Counsel
   fax: 202 501 8013
   
    Federal Communications Commission
    
   Reed Hundt
   Federal Communications Commission
   1919 M Street, N.W.
   Washington DC 20554
   
   cc: Elliot E. Maxwell
   Deputy Chief, Office of Plans and Policy
   fax: 202-418-2807
   
   cc: William E. Kennard
   General Counsel
   
    Register of Copyrights
    
   Marybeth Peters
   Register of Copyrights
   U.S. Copyright Office
   Library of Congress
   101 Independence Ave, S.E.,
   Washington DC 20540-6009
   fax: 202-707-8366
   
   cc: Shira Perlmutter
   Assoc. Register for Policy and International Affairs
   
   cc: Marilyn Kretsinger
   General Counsel
   
    U.S. Patent and Trademark Office
    
   Carmen Guzman Lowrey
   Associate Commissioner for Governmental and
   Intergovernmental Affairs
   U.S. Patent and Trademark Office
   Department of Congress
   Washington DC 20231
   fax: 703-305-8885
     _________________________________________________________________
   
                                  Annex 2
                 Courtesy Copies to International Officials
                                      
   Dr. Pekka Tarjanne
   Secretary-General
   International Telecommunication Union
   place des Nations
   CH-1211 Geneva 20 Switzerland
   fax: + 41 22 730-5137
   
   cc: Dr. Henry Casia
   Deputy Secretary-General
   fax: + 41 22 730-5137
   
   cc: Donald MacLean
   Chief, Policy Planning Unit
   
   cc: Alfonse Noll
   Conseiller juridique
 _________________________fin du document inclus_________________




-- 
Michael Dillon                   -               Internet & ISP Consulting
Memra Software Inc.              -                  Fax: +1-250-546-3049
http://www.memra.com             -               E-mail: michael@memra.com