European Affairs

U.S. Government Finally Cedes Control of Key Internet Function     Print

davidjohnsonThe zero dollar contract under which the U.S. Department of Commerce designated ICANN (Internet Corporation for Assigned Names and Numbers) to provide the crucial “IANA (Internet Assigned Number Authority) function" expired last weekend. Proposed legislation sponsored by Senator Ted Cruz was not adopted as part of a continuing resolution — and a last minute injunction sought by attorney generals of four states was turned down by a federal judge.

This means that control over what goes into the "root zone file" of top level domain names, and who can be the registry for such names, and even who can serve as an accredited registrar for gTLD (generic top level domain) registries, is no longer under U.S. government control and is now firmly in the hands of a California non-profit.

Some will see this as an overdue elimination of a special role for the U.S. government in “overseeing the internet.” Some will see this as a triumph of the “multi-stakeholder model.” Others will worry about whether ICANN has developed sufficient accountability measures or, having been given a de facto monopoly, could it abuse its powers and become another FIFA. See earlier European Affairs piece on the IANA divestiture.

In any event, there is much work left to be done. New bylaws that constrain ICANN to a limited mission have gone into effect. But the binding “Independent Review Process” that will give those harmed by violations of the bylaws a right to bring a case before a standing arbitration panel, with the power to bind the board, has not yet been put in place. We have not yet selected the John Marshall of cyberspace and can only hope to put a good candidate in place in the near term.

Some comfort can be taken from the fact that, although freed from the contract, ICANN remains subject to normal regulation — not only in the U.S. but also wherever its actions are sufficient to bring it within the jurisdiction of local governments. In the debates running up to the transition, ICANN itself conceded that it is not exempt from the application of anti-trust laws. And, if it were ever to take actions that threatened the free flow of information and global commerce, it seems clear that Congress would have ample authority to re-impose some rules, or even seize relevant contracts through eminent domain, to prevent the abuse of ICANN’s private sector powers.

The greatest risk is that some combination of governments and the internet community may agree to use the technological levers under ICANN’s control (the power to tell a registry to disable a domain name, for example) as a means of constraining online actions that are widely (but not universally) viewed as “abuse.” The new bylaws may prevent ICANN staff from imposing rules regarding online content. But the contracts generally require registries to abide by “consensus policies.” And, absent a Marbury vs. Madison type ruling from the new IRP, it remains unclear whether the bylaws allow imposition of content controls in the form of “public interest commitments” that have “consensus” support.

The internet community now has an enhanced ability to regulate itself, finding the balance between social responsibility and liberty. It had better set about doing so in a manner that protects fundamental freedoms and encourages local governments to defer to this new kind of global online law.

David R. Johnson is an expert on the Internet. He was active in the creation of ICANN and is a former Director of the Aspen Institute Internet Project.