The Guidelines makes the following very clear:
Mr Disini contradicts items 1 and 2 by asserting:
The PH Domain is not a public resource over which the State has a sovereign right.
The Guidelines define the .PH ccTLD as a public resource over which the State has a sovereign right. However, the State has made no contribution to the development of the Internet, the DNS system, or even the establishment of the local registry itself.
To support his argument, Mr Disini invokes RFC 15911 and he states:
In fact, the assertion of State 'rights' flies in the face of RFC-1591(sic), universally recognized as the basis for which all Top Level Domains are delegated. RFC-1591(sic) states that "concerns about 'rights' and 'ownership' are inappropriate....(i)t is appropriate to be concerned about 'responsibilities' and 'service'." To date, the NTC has not yet identified how the Registry has failed to live up to its responsibility of providing robust domain name service, nor what problems the said service may have.
RFC 1591 was written in March 1994 by Dr Postel of the Internet Assigned Names and Numbers Authority (IANA) to clarify how ccTLDs should be administered. Although it is very clear that questions of ownership are inappropriate, nowhere in this document does it state that the PH ccTLD or any other ccTLD is not a public resource. RFC 1591 makes no such unequivocal statement. Mr Disini is therefore asserting the following statement: Because questions of ownership (of the PH ccTLD) are inappropriate, the PH ccTLD is therefore not a public resource.
Let us analyze, Mr Disini's logic. If Mr Disini is correct that the PH ccTLD is not a public resource, it logically follows that the PH ccTLD is a private resource. It can only be one or the either. It is either owned by the public (hence not any particular group or individual) or owned by a particular group or individual. However, the conclusion that the PH ccTLD is a private resource contradicts RFC 1591. Mr Disini has grasped at illogical straws. The only logical conclusion is that Mr Disini is incorrect. The PH ccTLD is indeed a public resource.
Surely, Mr Disini can not claim that the PH ccTLD is a private resource. Not even a blind person reading RFC 1591 can make that claim. Could it perhaps be just a plain resource, neither public nor private? That is, the PH ccTLD is a resource not owned by anyone. If this is the case, then why does Mr Disini act as if he owns it? On one hand, he claims that the PH ccTLD is not owned by anyone. Yet in the past fourteen years of Mr Disini's administration, he has been the beneficial owner of PH ccTLD.
Some quarters have posited that the PH ccTLD is owned by the government of the United States of America (USG). There is some merit to this view because the entire Domain Name System was established under contract with the US Government. It was the US Department of Commerce which eventually pushed for the creation of Internet Corporation for Assigned Names and Numbers (ICANN) which had taken over the management of the DNS. However, it is important to note that although the USG has claimed oversight over the DNS TLD, it had never categorically claimed ownership over any ccTLD. In fact, by repeatedly and publicly encouraging the Internet stakeholders to participate in the reform process which led to the creation of ICANN, the USG has explicitly affirmed the characteristic of the DNS as a public resource.
Whether the PH ccTLD is owned by the Philippine Government or by the USG or whether it is not owned by any party at all does not alter the following facts:
If it is not a private resource much less Mr Disini's private resource, why is Mr Disini profiting from the use of this resource? Why is he allowed to administer the PH ccTLD according to his own whims and caprices, tempered only by his own conscience and driven by his quest for profit for himself and his companies? What exactly does Mr Disini own?
Does he own the database of registrants? Mr Disini appears to think so when he questions the NTC's right to have access to the database with this statement:
The Guidelines also compel Mr Disini to give up the database of registrants and impose limitations on the use of that database. The NTC has no right to do so, in the same way that it has no rights over the database of Smart, Globe or any ISP.
The database containing the PH ccTLD domains and the IP addresses or hostname identifier of their respective DNS name servers, known as the zone files, is not owned by Mr Disini. He is merely a keeper of these files, a steward of the files as the trustee of the community. The NTC has every right to have access to them just as the Internet community has every right to read them. This is not and never has been Mr Disini's private property. The only database he can claim ownership of is the database of his customers.
The Government Advisory Council (GAC) to the ICANN has clearly stated that2
No private intellectual or other property rights should inhere in the ccTLD itself, nor accrue to the delegee as the result of delegation or to any entity as a result of the management, administration or marketing of the ccTLD
It is clear that Mr Disini owns DotPH and all the physical resources which allow him to run the PH ccTLD Registry and Registrar business. Aside from these physical assets, what exactly does Mr Disini own? We have been waiting for a categorical statement of claims from Mr Disini since the year 2000.
Because the PH ccTLD is not a private property much less a property owned by Mr Disini and it is a resource for the use of the general public, it logically follows that the government should be involved in its policy formulation as the ultimate representative of the community. Aside from the GAC document, two other documents more recent than RFC 1591 were released by ICANN to guide how RFC 1591 should be administered.
The first document was contained in the ccTLD News Memo #13 released in October 1997 and which states:
An additional factor has become very important since RFC 1591 was written: the desires of the government of the country. The IANA takes the desires of the government of the country very seriously (emphasis added), and will take them as a major consideration in any transition discussion. regarding the ccTLDs.
The second document known as the Internet Coordination Policy#1 (ICP-1)4 was released in May 1999. It reiterates the guidelines found in RFC 1591 by stating:
(b) TLD Manager Responsibility. TLD managers are trustees for the delegated domain, and have a duty to serve the community. The designated manager is the trustee of the TLD for both the nation, in the case of ccTLDs, and the global Internet community. Concerns about "rights" and "ownership" of domains are inappropriate. It is appropriate, however, to be concerned about "responsibilities" and "service" to the community
It is not surprising that Mr Disini had not quoted from these two ICANN documents because they weaken his position that the government should stay away from the issue of the administration of the PH ccTLD.
The Guidelines have already concluded that the PH ccTLD should be administered in behalf of the community. The task of the Philippine Government is to look for that proper party who will ensure that the PH ccTLD is administered for the interest of the local community. Whether that party is the US Government, or the Internet Company for Assigned Names and Numbers, or Company X is another matter that the Government has to determine. What is very clear is that this party is not Mr Disini.
Unfortunately for Mr Disini, the Philippine Government does not need his permission when it seeks to act in the interest of and in behalf of the community.