UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
d/b/a NAME.SPACE, :
v. : 97 Civ. 1946 (RPP)
NETWORK SOLUTIONS, INC. and :
NATIONAL SCIENCE FOUNDATION,
DECLARATION OF HENRY H. PERRITT, JR.
Henry H. Perritt, Jr., declares under penalty of perjury as follows:
1. I am the Dean and Professor of Law at Chicago-Kent College of Law, Vice President - Downtown Campus, Illinois Institute of Technology, in Chicago, Illinois and formerly a Professor of Law at Villanova University. My business address is 565 West Adams Street, Chicago, Illinois 60661-3691.
Background and Experience
2. I hold a bachelors degree in engineering, a masters degree in management from Massachusetts Institute of Technology and a Juris Doctor degree from Georgetown University Law Center, where I was on the law journal.
3. I have attached my curriculum vitae for the complete details as Exhibit A.
4. I served on the White House staff in the Ford Administration, and worked on President Clintons transition team on telecommunications issues. I advised the Bush and Clinton White House staffs on Internet and government information policy.
5. I have written more than twelve (12) books and more than forty (40) law review articles, most of the recent articles dealing with law and technology, including "Law and the Information Superhighway," published by John Wiley & Sons, which I supplement annually. The Information Superhighway book is 740 pages long and covers the basic legal doctrines and institutional frameworks applicable to communications and information networks using traditional and new technologies. I spent a semester at Harvards Kennedy School of Public Policy in 1990, working on communications and information economics, law and policy issues associated with the emergence of the Internet. I have taught administrative law for seventeen years.
6. I was responsible for building one of the first Internet services facilitating access to public information when I was at Villanova. I drafted two resolutions on electronic information policy that were adopted by the American Bar Association. I have written two (2) reports for the Administrative Conference of the United States on information policy. I regularly speak on information technology and law. I organized and directed the Institute for Science, Law and Technology at MIT, which, among other things, presented a conference called "Network Convergences" on May 5, 1998, addressing the technological, economics, policy and legal issues associated with the evolution of the public switched telephone networks of the world and their convergence with satellite data networks and the Internet.
7. I have served as the Chairman of the ABA Section on Administrative Law, Committee on Regulatory Initiatives and Information Technology, Vice-President and Member of the Board of Directors for the Center for Computer Assisted Legal Instruction and Chairman of the Section on Law and Computers for the Association of American Law Schools. I have been a member of many government commissions and served as a consultant to federal agencies, including the White House Office of Management and Budget. I am presently a consultant to the European Commission Directorate General 13. I served as a member of the Advisory Committee on Internet Dissemination of SEC EDGAR data under an NSF Grant to NYU and IMS, and was a Member of the Working Group to Identify Barriers to Electronic Contracting by the Federal Government and the Working Group to Develop Public Policy Initiatives for Electronic Mail and Publishing Networks.
8. I am considered one of the leading experts on the law of the Internet. In addition to my Information Superhighway Book, I have written a number of law review articles on the adaptation of fundamental legal concepts to new economic and political environments created by the worldwide Internet. These include several articles on the exercise of jurisdiction in the Internet.
9. I also have been active and am considered an expert with respect to regulation and administration of Internet domain names. I presented a paper on new regulatory concepts for the Internet at a conference organized in the summer of 1997 after the NTIA notice of inquiry was released. I am a continuing consultant to Directorate General 13 of the European Commission on Internet issues. I organized and mediated a working group on October 8, 1997 aimed at developing a consensus on the boundary between public and private regulatory systems for Internet regulation, centered on regulation of domain names. See http://www.cilp.org. (consensus principles developed on October 8)
10. I am completely familiar with the customs and practices used on the Internet, the location of resources on the Internet, the use of domain names on the Internet, the manner in which products and services are identified on the Internet, and the established Internet domain naming conventions.
11. I am familiar with international law, and have written and taught about the interrelationship of international law and the Internet.
International Law Applcability to the Internet DNS System
12. On the Internet, an Internet Protocol (IP) "address" is used to identify specific Internet resources. Because users would have difficulty remembering and using numerical IP addresses of the form 22.214.171.124, Internet users almost always employ Internet addresses in the form of "domain names." A domain name is an alphanumeric word or phrase such as "kentlaw.edu," or "nytimes.com." It is customary for organizations to choose and register domain names that will remind users of the name of the organization or the types of products or services offered by that organization. For example, "kentlaw.edu" reminds users of Chicago Kent College of Law and "nytimes.com" reminds users of the New York Times. A domain name such as "flowers.com" reminds users of an Internet vendor that sells flowers.
13. The Internet is a vast, global collection of many, many computer networks. There are many millions of resources of various types on the Internet. To provide the capability of referring to Internet resources, a number of conventions have been developed and adopted. It is these conventions that ensure, for example, that each e-mail address or each Web address is unique.
14. Every Internet resource resides on some computer, called a "node". To identify a particular node, the Internet uses a domain name. For example, "cda.com", "ibm.com", "microsoft.com", "books.com", and "worldnet.att.net" are domain names. There are two systems used for domain names. One, the national or geographical top level domain system, is not relevant here. The other system is used far more frequently. It is called the international, generic or organizational top level domain system.
15. Within the generic domain system, each domain name ends with a particular suffix, indicating the type of organization using the name. This suffix is called a top-level domain name. The combination of this suffix and the preceding text is called a second-level domain name. For example, in the name "cds.com", the top-level domain is "com"; in the name "worldnet.att.net," the top-level domain is "net".
16. The DNS functions through domain name servers that translate the human-friendly names into IP addresses such as 126.96.36.199 through a series of interconnected domain name tables maintained on DNS servers. Tens of thousands of DNS servers are linked in a kind of hierarchical distributed look-up service. If one DNS server does not know a domain name for which it is asked to supply the IP address, it refers the request to another DNS server with broader knowledge of that part of the Internet domain. This hierarchical lookup service depends on entries for top level domains being in the "root" name server.
17. The biggest challenge in sorting out the future domain name registration system is moving toward competition in assigning and resolving domain names. Some things are reasonably clear. First, it is feasible to have competing ("competing" in this sense simply means multiple sources; it implies nothing about motivation to engage in economic competition) domain name servers. Indeed, it is a rare Internet node that does not now have a choice among competing domain name service which can be exercised simply by designating one or another DNS server IP address and the setup for the client IP software. There is no technical reason not to allow for competing top-level domains, managed by different entities, with the address of the name servers for the top level domains appearing in the root server. Second, there must be a single technical protocol for resolving domain names so that DNS servers wherever located can refer domain names resolution requests to other DNS servers when they lack the necessary information in their domain name databases. Third, information on who has authoritative information about second level domain names must be comprehensive. Otherwise, clients would get conflicting resolutions based on the happenstance of the path their DNS queries follow.
18. Several private entities, including the plaintiff, are developing new domain name spaces. Unless these entities are included in the root server database, their potential competition in the market for top level domains will be thwarted.
19. On July 2, 1997, the United States Government requested comment on six principles for domain name registration systems <http:\\ntia.doc.gov\new.tml> (July 2, 1997). That Notice of Inquiry (NOI) included the following assertions:
"[R]egistration of domain names within a few top-level domains (.com, .net, .org) has increased from approximately 400 per month in 1993 to as many as 70,000 per month in 1996, the overwhelming majority in the . com category. . . . In recent years, . . . Internet expansion has been driven primarily by the private sector. The Internet has operated by consensus rather than by government regulation. Many believe that the Internets decentralized structure accounts at least in part for its rapid growth.
The Government has supported the privatization and commercialization of the Internet through actions such as the transition from the NSFNET backbone to commercial backbones. The Government supports continued private sector leadership for the Internet and believes that the transition to private sector control should continue. The stability of the Internet depends on a fully interconnected and interoperable domain name system that must be preserved during any transition.
Competition in and expansion of the domain name registration system should be encouraged. Conflicting domains, systems, and registries should not be permitted to jeopardize the interoperation of the Internet, however. The addressing scheme should not prevent any user from connecting to any other site.
These self-governance mechanisms should recognize the inherently global nature of the Internet and be able to evolve as necessary over time.
In 1998, the Commerce Departments so-called "Green Paper" reiterated:
From its origins as a U.S.-based research vehicle, the Internet is rapidly becoming an international medium for commerce, education and communication. The traditional means of organizing its technical functions need to evolve as well. The pressures for change are coming from many different quarters:
There is widespread dissatisfaction about absence of competition in domain name registration.
* * *
An increasing percentage of Internet users reside outside of the U.S., and those stakeholders want a larger voice in Internet coordination.
As Internet names increasingly have commercial value, the decision to add new top-level domains cannot continue to e made on an ad hoc basis by entities or individuals that are not formally accountable to the Internet community.
63 Fed. Reg. 8825, 8826-27 (Feb. 20, 1998).
20. It is unclear what the basis is for the defendants assertion of authority over the root "A" server (hereinafter the "root server"). Although IANA and InterNIC, which have delegated certain technical functions to NSI, receive Government funds, and although NSF is a government instrumentality, no treaty, constitution or statute gives these bodies authority to set policy or to make rules for the Internet. The financial support provided by the government has not created government ownership of any intellectual property or physical asset essential to operation of the root of the domain name system. To the contrary, it is the practice and custom of the international Internet community, rather than law, that defines the operation of the domain name system. Absent any identifiable legal authority, the United States government lacks the legal power to deny access to plaintiff, and this case becomes a simple private antitrust case.
21. If government authority exists to shield the defendants monopoly, the question is whether that assertion is consistent with international law. Membership of the United States in the international community of nations requires that U.S. law be interpreted, when possible, to be consistent with international law.
22. Accepting the defendants position in this case would extend the jurisdiction of United States law far beyond what the principles of international law permit. The United States government and its contractors can regulate core features of the Internet to the exclusion of other nations and their citizens only if the United States has prescriptive jurisdiction over those core features.
23. International law recognizes three types of jurisdiction in both the civil and criminal contexts: jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce. Jurisdiction to prescribe relates to a states power under international law to apply its substantive law. Jurisdiction to prescribe thus relates to choice of law and to legislative acts, and most commonly is involved in arguments over whether a particular law has "extraterritorial effect." Jurisdiction to adjudicate encompasses what American litigators usually call "personal jurisdiction." It encompasses the power of a court or other adjudicatory tribunal to decide a dispute between two parties or with respect to a thing. Jurisdiction to enforce applies to executive acts such as investigation, arrest, pre-judgment attachment and execution of judgments against property. It also includes imposition of economic sanctions such as trade barriers, freezing of assets, or immigration restrictions such as those imposed under the Helms Burton Act.
24. While distinct, these three bases of jurisdiction are related. All of them originate in territorial limits on the power of states to apply their own law. As technology has permitted the expansion of commerce, rules for asserting various types of jurisdiction internationally necessarily have expanded, even as the United States Supreme Court expanded concepts of interstate jurisdiction, moving from Penoyer v. Neff, 95 U.S. 714 (1878), to International Shoe, and beyond. Because of the interrelationship of the three types of jurisdiction, basic concepts and formulas developed in one area of jurisdiction can be used in other areas, although the distinctions and purposes of the different types of jurisdiction must be taken into account when borrowing concepts. Allstate Insurance Co. v. Hague, 449 U.S. 302, 318 n.23 (1981) (recognizing possibility that same contacts may result in divergent conclusions regarding personal jurisdiction and choice-of-law; upholding Minnesota courts use of substantive Minnesota law).
25. Traditionally, territorial connections are necessary to support jurisdiction. Sovereign states have jurisdiction over the things present and acts committed in their territory (subjective territoriality). Increasingly, they also have jurisdiction over acts conducted outside their physical territory that have effects within their territory (objective territoriality). Obviously, the root server is inside the United States, and the United State therefore might be assumed to have plenary jurisdiction to regulate it. That is not so, because international law places limits on the jurisdiction of one state, even when one or more of the traditional bases of jurisdiction are present. The Restatement (Third) of Foreign Relations Law of the United States provides:
§ 403. LIMITATIONS ON JURISDICTION TO PRESCRIBE TEXT
(1) Even when one of the bases for jurisdiction under s 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable.
(2) Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate:
(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;
(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;
(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted.
(d) the existence of justified expectations that might be protected or hurt by the regulation;
(e) the importance of the regulation to the international political, legal, or economic system;
(f) the extent to which the regulation is consistent with the traditions of the international system;
(g) the extent to which another state may have an interest in regulating the activity; and
(h) the likelihood of conflict with regulation by another state.
(3) When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other states interest in exercising jurisdiction, in light of all the relevant factors, including those set out in Subsection (2); a state should defer to the other state if that states interest is clearly greater.
26. Of particular importance in the context of this case are § 403 (2)(c), (d), (f), (g), and (h). Assertion of monopoly control over the root server by a United States government contractor is inconsistent with the character of Internet domain name regulation and thus, paragraph (c) militates against such monopoly control. It jeopardizes the expectations of open evolution of the Internet, and thus paragraph (d) militates against the monopoly control. Monopoly control by a U.S. government contractor over the root server is inconsistent with the traditions of the international system, and thus paragraph (f) militates against monopoly control. Other states have an interest in shaping regulation of the Internet, and this monopoly control conflicts with that multi state regulatory approach. Thus, paragraphs (g) and (h) militate against such monopoly control. Those interests and the character of the Internet militate against monopoly control.
27. Under § 403(3), this Court has an obligation to evaluate the international interests and the open character of the Internet in shaping the doctrines involved in this case.
28. Section 403s reasonableness restriction is remarkably similar to the restrictions imposed by the "fair play and substantial justice" test for interstate jurisdiction in the United States, articulated by the United States Supreme Court in World Wide Volkswagen and Asahi. "The strictures of the Due Process Clause forbid a state court to exercise personal jurisdiction over Asahi under circumstances that would offend " traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. at 463).
We have previously explained that the determination of the reasonableness of the exercise of jurisdiction in each case will depend on an evaluation of several factors. A court must consider the burden on the defendant, the interests of the forum State, and the plaintiffs interest in obtaining relief. It must also weigh in its determination "the interstate judicial systems interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies."
World-Wide Volkswagen, 444 U.S. at 292 (citations omitted); see also Asahi Metal Industry Co., Ltd. v. Superior Court, 480 U.S. 102, 113 (1987).
29. The factors involving interstate judicial systems interest in efficient resolution, and the shared interest of the several states are succinct restatements of the principles set forth in Section 403. These Supreme Court principles militate against allowing monopoly control for the same reasons set forth in paragraph 26.
30. The Internet presents special challenges to international jurisdiction because of its inherently international character. Unavoidably, the nations of the world have concurrent jurisdiction over the Internet.
31. Scholars of international law have recognized the harm that can result from exercise of concurrent jurisdiction. "Wherever more than one State has prescriptive jurisdiction under bases of jurisdiction detailed above, problems of fairness, justice and desirable policy arise if more than one of the various States having valid bases of jurisdiction seeks to exercise it." Covey T. Oliver, The Jurisdiction (Competence) of States, in Mohammed Bedjaoui, International Law: Achievements and Prospects, ch. 15 at 307, 320 (1991). Courts can guard against this risk by weighing interests of the forum state compared to the interests of other states and the shared interests of the multistate community. Id. at 321.
40. The international legal community also recognizes that new technologies open up "extra-territorial" spaces, or global commons. "The concept of global commons carries with it common sharing with common benefits and common costs. [I]t is a key characteristic of the concept of global commons that it cannot be appropriated by a single State . . . ." Nagendra Singh, Introduction to International Law of the Sea and International Space Law, in Mohammed Bedjaoui, International Law: Achievements and Prospects 825, 826 (1991). What constitutes the global commons is malleable. It is generally acknowledged to include the high seas, outer space, the electromagnetic spectrum, and geostationary orbital slots. Increasingly, the world community considers aspects of the human environment to be a global commons. Id. at 825-827.
41. While new technologies, such as the Internet, create new challenges for legal institutions trust into disputes related to new global cognomens, the basic principles are not new. "The basic question addressed by Grotius, and still at the heart of the subject, concerns the rights of all states and their nationals to use the seas free of foreign control, and their duties to respect the interests of others and the community as a whole in exercising those rights." Bernard H. Oxman, Law of the Sea, in 2 Oscar Schacter & Christopher C. Joyner, United Nations Legal Order 671, 673 (1995).
42. The major premise is that evolving principles of international law limit the exercise of prescriptive jurisdiction by the United States with respect to global commons. U.S. jurisdiction to prescribe should be circumscribed so that it does not interfere with the use by other sovereigns of the Internet and the right of other sovereigns to exercise their own concurrent jurisdiction. Two additional propositions are necessary to sustain pgMedias position: first, the Internet must qualify as a global commons; and second, the exercise of prescriptive jurisdiction in accordance with the defendants position must threaten other sovereigns uses and the right of other sovereigns to regulate.
43. The Internet qualifies as a global commons. The Internet is universally regarded as a global information infrastructure. It is defined, not in terms of corporate or national boundaries, but as a phenomenon of thousands of independent computer systems electing to connect to each other by means of the universal IP and TCP technical protocols through a shared name and address space.
44. It is the "shared name and address space" element of this definition that makes this case so critical. The Internet can function as the global resource only if the name and address space continues to be sharable, worldwide. The most fundamental part of that shared name space is the root server. Action by any sovereign to restrict the operation of the root server necessarily effects the use by all other sovereigns and their citizens of this fundamental feature of the Internet. It is the latter-day equivalent of an international waterway as to which the assertion of control by one sovereign necessarily limits the concurrent rights of all other sovereigns.
45. The Internet is too new to have been subjected to a treaty regime like the law of the sea, electromagnetic spectrum, or outer space. It is plausiblethat treaty obligations under the General Agreement On Trade in Services would be violated by a legal interpretation in this case that permits extension of monopoly control over the root servers. Whether or not that is so, principles of customary international law, recognized for centuries, limit the jurisdiction of individual sovereign states with respect to internationally shared resources such as the Internet.
46. The type of regulation involved here is particularly inconsistent with shared global use of the Internet. The defendants argue that they are entitled to assert a monopoly over the root server. They claim that this monopoly is immunized from application of the usual principles of competition law because it can trace its pedigree to policies of the United States government. In effect, the defendants argue that their monopoly is the necessary result of legislative acts by the United States (legislative in the general sense that all rule making is legislative in character). Assertion of such a monopoly is the most extreme interference with concurrent jurisdiction by other states inasmuch as a monopoly, by definition, excludes other users and occupiers of the same resource except on the terms unilaterally determined by the monopolists.
47. This is not a case in which judicial application of principles of international law collides with clear affirmative policy judgments by other branches of the United States government. Instead, this involves discretionary interpretation of ambiguous antitrust principles. The countervailing forces that might militate against rigorous application of international law and other cases are absent here. All that is necessary is to resolve a relatively close balance on anti trust immunity in favor of opening up the root server, and against the novel propositions of the defendants.
48. This case does not involve a private claim to act inconsistently with a carefully articulated scheme of public regulation. To the contrary, the United States Government has disavowed any intent to subject the Internet domain name system to centralized government regulation. Instead, it has called upon private participants in the Internet community to develop international, private, competitive mechanisms for administering domain names. The position of the plaintiff in this litigation is consistent with that policy. The position of the defendant is not. The Governments aspiration, expressed in the NOI and Green Papers are consistent with international law. The defendants position is not.
49. These conclusions and opinions are based on my review of the pleadings in this case, other documents concerning the relationship of NSI, NSF and the United States government, the cases and legal authorities cited in this declaration, and the general knowledge I have developed regarding the Internet from my several years of scholarly and practical activity. I have testified or been qualified as an expert before. I have prepared reports and/or testified in about a half-dozen cases, some involving employment law, but more recently focusing on information technology and law. In the last four years, I have testified at trial or deposition in four federal court cases:
UAW v. Curtiss-Wright (D.N.J.)
Christy v. Pennsylvania Turnpike Commission, E.D.Pa. 93-CV-3346
PTI Services, Inc. v. Quotron Systems, Inc., E.D.Pa. No. 94-2068
CD Solutions Inc. v. John Cleven Tooker, Commercial Printing Company and cds
Networks, Inc., D.Ore., Civil Action No. 97-793
My normal rate for services rendered is $350.00 per hour.
I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information and belief. Executed this 13th day of May, 1998, at Washington, D.C.
Henry H. Perritt, Jr.