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The e-mail must go through. Will it?

Law professor Bradford Brown ponders how well ICANN will handle the bidding process to run the critical .net registry.

The motto of the Pony Express was, "The mail must go through." Now, 140 years later, we can say, "The e-mail must go through."

Today, the ability to communicate and transact e-business is fundamental to our economic security, and by extension, our national security. As a result, the stability of our core systems is critically important. Such has been the case with the cycle of business throughout each generation.

Having served in the U.S. Department of Commerce, I have become concerned in recent months about the upcoming process to decide who will run the .net Internet domain registry. Simply put, the re-compete of the .net registry is a very unique situation.

The Commerce Department shares responsibility for the management of the Domain Name System but has specifically delegated the coordination function, including oversight of the .net registry, to the Internet Corporation for Assigned Names and Numbers (ICANN), a California not-for-profit corporation. As a result, the .net registry agreement is a private corporate arrangement and not a government contract, per se. Therefore, ICANN--not the Department of Commerce--is putting out bids to re-compete the existing agreement to manage that registry.

In the past, ICANN's decision-making process has been arbitrary, unclear and subject to internal political struggles.

Yet the re-compete of the .net registry agreement is not just another private contract competition. The stakes are far higher, and ICANN must get it right. I am heartened that ICANN announced recently that it will use a third-party arbitrator to help make this decision, a move that will have far-reaching implications for e-commerce, communications, economic security and national security.

But whether or not the ICANN structure and deliberative process is capable of factoring such considerations is anyone's guess. In the past, ICANN's decision-making process has been arbitrary, unclear and subject to internal political struggles. That said, this competition cannot become a test bed for new entrants.

In the current security environment, the United States cannot afford that kind of risk. Simply put, in this environment, a track record matters. An ability to handle volume and technical issues while providing stability also matters. How such factors are weighed is up to ICANN. In this volatile period, the United States is at war, fighting a global terrorist network bent on destabilizing our national security by undermining our economic security. Yes, much is on the line.

The Internet has helped create a truly global market and has forged unprecedented improvements in productivity. Millions of users have come to rely on .com, .gov, .net and other registries for communications, transactions and information in the billions of dollars in overall economic value. What those numbers do not reveal is that interdependencies exist between these registries that require stability in the system.

If the .net registry is not stable, it's unlikely that .com and the other registries can remain stable. To take that one step further, a large percentage of the .gov registry also depends on .net to have a predictable level of performance. In simple terms, the .net registry is much like a body's central nervous system; it is critical to enabling the entire network to function.

On its face, the re-compete of the .net registry agreement seems fairly straightforward. Put in context, however, what is at stake are billions of dollars in daily e-commerce, billions of page views and e-mails--not to mention the global stability of the Internet, as a large number of the Internet hosts are dependent on .net. One would think that maintaining these numbers has to be a major concern of the federal government.

Over the years, ICANN has made a number of terrible decisions.

In a recent analysis, Legg Mason concluded that the re-competition is focused on "stability of the Internet and the promotion of competition." There is no doubt that with all things equal, the promotion of competition is a paramount concern. But what ICANN needs to remember is that global competition, in many vertical sectors of the economy, requires this system to function. And the bottom line is that stability, a track record and security must be strongly weighed.

In times of war, the United States historically faces a unique business and geopolitical environment--the so-called "wartime economy." In such environments, our policy bias has been skewed toward maintaining the stability of existing systems and institutions in order to allow broader markets to function. In times of crisis, the prudent path is the road more traveled, not less traveled.

Over the years, ICANN has made a number of terrible decisions. Those decisions have made many observers--myself included--question its process and procedures. There are many questions that need answers in this situation.

Given ICANN's current structure, how are the national and economic security concerns of the federal government going to get factored into ICANN's deliberation of this important matter? What is that mechanism? Does the Department of Commerce provide that input through its existing Memorandum of Understanding with ICANN? Even though it helped create ICANN, is the Department of Commerce in a position to provide that input? Who consults with ICANN, and how are these concerns weighed and balanced in the context of the re-compete?

Stability provides continuity and promotes faith in our systems, faith in our institutions, faith in our economy, faith in our government and faith in ourselves. When faced with the uncertainty of war, the certainty of communications and transaction systems is clearly required. The stability of the Internet as a whole needs to be maintained.

As such, I urge Congress and the Bush administration to pay close attention to this vital issue. The e-mail must indeed go through.