Countries Evolving in Cyberspace
Anupam Chander
Posted Friday, May 2, 2008
8 U.C. Davis Bus. L.J. (2008)

1. Tuvalu as Television

For the 10,838 people of the island nation of Tuvalu, the Internet has proved a boon. It is not because the Internet gave them a portal to the world's information or access to markets for their products. The boon for the Pacific island nation was in the fact that, by sheer lexical luck, an Internet policy-making body had assigned to it the right to control domain names with the coveted ending .tv. Tuvalu cashed in on that right by selling it of to a California company for $40 million over the span of ten years (plus equity in the California company). Similar Internet gold stories are being told of Tonga (the holders of the .to domain space), Moldova (.md), Turkmenistan (.tm), Belize (.bz), the Cocos Islands (.cc), and Samoa (.ws).

How did this come to pass? This short essay describes the institutional and political process through which the country domain system is evolving. The country domain system exists in parallel with the domains with which we in the United States are more familiar. Domain names are currently divided between 7 "generic" Top Level Domains, which includes most famously .com, and 239 "country code" Top Level Domains, beginning with Ascension Island (.ac) and ending with Zimbabwe (.zw). With the exception of .gov and .mil (which are reserved for the United States government), the generic Top Level Domains (TLDs) are international in scope, and their management is assigned to non-national authorities. The country domains, on the other hand, are assigned to national authorities, who can use them how they see fit. Businesses have increasingly turned to such domain names, spurred in part by the exhaustion of easy-to-remember names in the .com space and also by the natural consumer association with certain TLDs such as .tv and .md.

2. Country Domain Origins

The idea of country domains for a global computer network was introduced as early as 1984 by university researchers Jon Postel and J. Reynolds (J. Postel and J. Reynolds, Domain Requirements, RFC 920, October 1984). At that time, and still in part to this day, Internet policies were devised through consensus reached in a small, dispersed research community. Indeed, consensus-type methods were necessary for the Internet to flourish because the Internet relied on the voluntary cooperation of far-flung computer administrators. In a 1984 policy document, Postel and Reynolds proposed the introduction of domain names with country designations, in addition to the global domain names with endings like .com or .org. Instead of choosing the entire name of the country, as they might have done, they suggested the use of a two-letter code-rather like the postal abbreviation "MA" in lieu of "Massachusetts."

3. ISO: From Industrial Length Measurement to Internet Domains

And rather than devise the codes themselves, they chose a list promulgated by the authoritative and well-respected International Organization for Standardization. That list is the source of the new-found wealth of small nations like Tuvalu. Headquartered in Geneva, the International Organization for Standardization (known as the "ISO" from the Greek prefix for "equal") has long been in the business of devising international standards. The ISO is a worldwide federation of national standards bodies from some 130 countries, one from each country. The ISO's U.S. constituent is the American National Standards Institute, a private, nonprofit organization, which is in turn supported by private and public sector organizations.

Established as a post-war non-governmental organization in 1947, ISO published its first standard in 1951 titled, "Standard reference temperature for industrial length measurement." In 1974, ISO published ISO 3166, its list of abbreviations ("country codes") for each of the world's countries. This country code list (now called ISO 3166-1) is used for various industrial and financial purposes, including international securities identification, electronic data interchange, and machine readable passports.

Certain ISO standards require a special body to monitor and modify the standard. ISO 3166 is managed by a Maintenance Agency housed at the Deutsches Institut für Normung in Berlin. This agency (known by the unwieldy name ISO 3166-MA) consists of members from five national standards bodies (AFNOR from France, ANSI from the U.S., BSI from the UK, DIN from Germany, and SIS from Sweden), as well as representatives of five international organizations (the International Atomic Energy Agency, the International Telecommunication Union, the Universal Postal Union, the Statistics Department of the United Nations in New York, the United Nations Economic Commission for Europe, and the United Nations Conference on Trade and Development).

Awarding country codes is a tricky business. Despite the ISO 3166 MA's desire to stay out of the controversial thicket of recognizing countries, much of its work is inherently political. The Agency allows two methods for gaining admission to the prized ISO 3166-1 list. Under the first method, an entry for that country in the UN Bulletin "Country Names" and in the UN list of "Standard Country or Area Codes for Statistical Use" is considered an "authoritative input" for ISO 3166-1. The second method is more complicated, consisting of a request for consists of a request to the ISO 3166 MA that must satisfy the following criteria; to quote those requirements in full:

I. The area name for which the inclusion in ISO 3166-1 is requested represents an area which is physically separated from its parent country. Dependent areas directly bordering on the parent country cannot be included in ISO 3166-1.

II. An interchange requirement exists between the area for which a code element is requested and other physical locations. For the purposes of ISO 3166-1 the term interchange requirement includes a stated and proven necessity to move physical objects (e.g. goods) or non-physical objects (e.g. electronic messages) from one physical location to another.

III. A request for the inclusion of a country name (or the name of a dependent area) in ISO 3166-1 must originate from the national government of the country or from the national standards body of that country. The ISO 3166/MA rejects any request which is not accompanied by a written statement from the national government explicitly agreeing to and supporting the request.

These criteria demonstrate that the so-called "country" code list actually encompasses territories that are not countries in their own right. Under these criteria, a country code can be given for a "dependent area" "physically separated from its parent country." Furthermore, even if all of these three criteria are satisfied, the ISO 3166/MA will "discuss the request and vote on it." This reservation of discretion without a clear statement of the standard used for the exercise of such discretion makes this standard-setting body's role somewhat political.

4. Europe as Country?

We can begin to see the political nature of this "country" code process by examining briefly its most recent application. In a domain name system divided between global domains such as .com, and country domains such as .cn (for China), where does a community such as the European Union fit? It is neither global, nor national (despite proclamations of EU "citizenship"). Despite this fact, the European Union came gradually to recognize the usefulness of having its own regional domain space. It saw a new .eu domain as a key part in "accelerating #8230; e-commerce in Europe," especially when considered in conjunction with the introduction of a single currency.

In 2000, the European Union approached ICANN, the California not-for-profit organization assigned by the U.S. government to administer the domain name system internationally, to request the creation of a new .eu Top Level Domain. Even though the request was at odds with the stated country/global structure of the domain name system, when confronted by a request for a regional domain space from a powerful constituent, ICANN, as we shall see, responded quickly to satisfy that constituent.

Importantly, the European Union also informed the United States government of its desire for the new TLD. However, though the Department of Commerce retains legal authority over the Domain Name System, it has as yet shown no signs of interfering with ICANN's decisions in administering the system.

Some time before the EU applied to ICANN, it had submitted a request to the ISO 3166 MA to reserve "eu" as a code, thereby preventing the assignment of "eu" to another country or territory. The ISO 3166 MA allows some codes to be reserved even if they do not qualify for inclusion in the ISO 3166-1 list if the code is needed "to enable a particular user application of the [ISO 3166] standard." The Agency had honored the EU’s request and reserved the "eu" code.

ICANN proved similarly receptive. On September 25, 2000, ICANN's Board of Directors adopted a resolution that would permit a sister Internet authority, IANA (the Internet Assigned Names Authority), to assign new country code TLDs to a country, territory, or area for which the ISO 3166 MA has reserved a code, despite the fact that that entity does not appear in the official ISO 3166-1 list. The action was taken without public notice or review, in a resolution that nowhere mentions the European Union. Both the EU and the media have interpreted this action as an effective approval of a new .eu TLD.

5. Internet Engineering as Politics

As Larry Lessig has told us, code is law-that is, the architecture of cyberspace determines what is possible in this new realm. The story of the ongoing evolution of the country domain space illustrates how engineering decisions have significant political consequences. Despite its oft-stated self-description as a technical, not a political, body, the recent experience with the .eu domains demonstrates that ICANN has begun to recognize the politics involved in Internet policy-making. Furthermore, we see how the country domain name space is no longer truly a "country" space, with .tv refashioned as Internet television, and .eu created for a multi-state region.

Anupam Chander is acting Professor of Law, University of California, Davis.