Do governments have too much potential power over ICANN, and do they need reining in before the US cuts itself loose?
It’s a question that’s emerging given the recent decision of the United States government to remove itself from stewardship of the domain name system root zone.
The US National Telecommunications and Information Administration may have no intention of allowing other governments to replace it as overseer of the IANA functions, but that doesn’t mean that governments won’t be able to abuse their powers in future under ICANN’s existing structures.
Before getting into the arguments, I should first apologize for the misleading, clickbaiting headline on this post. It’s a sarcastic response to the misleading narrative that has been set by much of the mainstream media in the US.
For the record, I don’t think Russia and China are going to take over the internet, ICANN or the DNS.
What I’d like to look at here are ways in which the Governmental Advisory Committee might need to be reformed in order to maintain balance and prevent capture by any bad government in future.
And by “bad government”, I’m not just talking about Russia, China, Iran and any other boogeyman that may pop up in future; I could just as easily mean the United States and European Union member states.
I’m basing quite a lot of this on concerns raised by NetChoice Coalition’s Steve DelBianco in a Congressional hearing last week.
While DelBianco seems to be generally pro-transition, he outlined several “stress test” scenarios that he believes need to be addressed during the stewardship transition process.
Among other things, DelBianco said: “It will be important for the transition plan to prevent any government-led organization from replacing the former U.S. role after the transition is complete.”
Everyone, from the lunatic fringe of the US media that bases its reporting on GOP talking points to the senior management of ICANN and the NTIA itself, is on the same page here.
Nobody wants the US to be replaced by an intergovernmental alternative.
Indeed, baked into the NTIA’s proposal to relinquish its stewardship powers is an explicit promise that a government-led replacement will not be approved. It ain’t going to happen.
But governments already have a powerful voice within ICANN, in the form of the Governmental Advisory Committee.
While all national governments are welcome at the GAC, it currently has around 130-odd listed members.
Typically, fewer than half actually show up to in-person ICANN meetings. DelBianco reports that there were 61 in attendance at the ICANN 49 meeting in Singapore two weeks ago.
The GAC has the ability to issue “advice” to the ICANN board of directors.
The board is free to accept or reject this advice. Rejection, which can and does happen, triggers a lengthy consultation process in which both parties attempt to reconcile their differences.
In practice, ICANN tends to bend over backwards to accommodate GAC advice, even to the point of occasionally willfully misinterpreting it in order to make it appear that it has been accepted.
Under Principle 47 of the current GAC Operating Principles it would be virtually impossible for a government or group of governments to capture the GAC. The GAC only issues advice by consensus:
The GAC works on the basis of seeking consensus among its membership. Consistent with United Nations practice, consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection. Where consensus is not possible, the Chair shall convey the full range of views expressed by members to the ICANN Board.
If China and Russia managed to persuade every other GAC member to agree with a repressive policy they wanted to introduce, the United States could hold out and destroy consensus.
And, it should be said, vice versa.
How the GAC has used its power
The GAC has a track record of issuing advice, by consensus, that trickles down, via ICANN’s contracts with registrars and registries, to affect domain registrants and regular internet users.
Sometimes, the impact could be said to impact human rights issues such as free expression and privacy.
For example, when law enforcement agencies (LEA) such as the FBI and Interpol recommended that registrars should start logging their customers’ IP addresses and should suspend the domains of registrants whose contact information could not be verified, the GAC reissued those recommendations as “GAC/LEA” advice that ICANN eventually accepted.
One could argue that this has free speech and privacy implications, but it came via the consensus of a GAC that included nations with privacy rights enshrined in their constitutions and statute books.
In fact, the United States was one of the strongest advocates for the LEA recommendations becoming part of the registrar contract, as this report from the October 2011 ICANN meeting Dakar will illustrate.
Let’s be clear here: legitimate bloggers are having their web sites suspended today, right now, because of what the US did in the GAC.
I’m singling out the US unfairly here just as a counterpoint to the arguments, emerging in DI comments and elsewhere, to the effect that the US is some kind of unshakeable guardian of internet freedom. It ain’t.
All governments can be credited/blamed for this situation.
The GAC also has a track record of compelling ICANN, via its advice, to prevent certain top-level domains from entering the DNS root zone.
In the current round of new gTLD applications, two strings have so far been killed off as a direct result of GAC advice and many more at at risk.
Applications for .thai and .gcc were both thrown out by ICANN because the GAC, by consensus, did not disagree with the objections of the Thai government and the Gulf Cooperation Council.
Amazon.com’s application for .amazon is currently on hold because the GAC, again by consensus, thinks that nations such as Brazil and Peru have better rights to the term.
ICANN has still to make a formal decision on applications for .spa, which the GAC has advised (by consensus) be placed “on hold” until Belgium (unilaterally) decides whether to endorse them or not.
Several other applicants have voluntarily withdrawn their applications after receiving GAC consensus objections.
Many more face losing their deposits unless they comply with GAC advice on matters such as registrant credentialing.
If having a TLD delegated to the root zone is a free speech issue, the GAC already has the power to affect it.
What if Russia tries to ban gay?
Let’s take a hypothetical scenario: Russia wants ICANN to force registrars to suspend the domain names of web sites containing content it considers pro-homosexuality.
Today, Russia would have to get a consensus of the GAC to agree with it — that is, no government objections to its proposal — in order for full-fat GAC advice to make its way to the board.
That, clearly, would not happen. Non-homophobic nations in North America, Europe, Latin America, Asia and no doubt parts of Africa would not stand for such a thing.
There would be no shortage of governments eager to block consensus on such an appalling proposal.
Even if the GAC came to a consensus to ban the gays, ICANN’s board of directors would be able to reject the advice by going through the necessary motions.
If by some crazy turn of events the ICANN board accepted the advice, ICANN would still have to get the contractual changes past the registrars themselves, which would prove challenging.
But what if the GAC operated not by consensus but by majority rule?
What if Russia persuaded enough of its allies and client states to show up to an ICANN meeting to raise their hands at the appropriate moment? It could, conceivably swing a vote.
While the GAC does not issue advice by majority today, it would be a relatively simple matter for it to change its Operating Principles so that voting, not consensus, ruled.
In fact, the Operating Principles state that they can be amended by a simple majority. Principle 53 states:
A Member or Members may move, at a meeting, for these Operating Principles to be open to revision. If so moved, the Chair shall call for the movement to be seconded. If so seconded, then the Chair shall call for a vote to support the resolution. The deciding vote may be by ballot, by the raising or cards, or by roll call, and shall constitute a simple majority of the Members who are present at the meeting at which it was moved for these Operating Principles to be revised. If so resolved in favour of a revision of these Operating Principles, then the proposal shall sit for consultation for a period of sixty (60) days. At the next meeting following the sixty days, the Chair shall call for a vote for or against the proposal. The deciding vote may be taken by ballot, by the raising or cards, or by roll call, and shall be a simple majority of the Members who are present at the meeting at which the vote takes place.
This, the GAC’s current ability to radically change its voting procedures, is at the heart of some of DelBianco’s “stress tests”.
His example below concerns post-delegation censorship of the root itself, rather than individual web sites, but the same rules outlined above apply.
In his testimony (pdf) to Congress, DelBianco said:
a majority of governments in the GAC might advise ICANN to suspend a TLD that refuses to remove domains with content critical of governments (e.g., .corrupt ). Today, this kind of censorship routinely occurs at the edge of the Internet when governments block domestic access to websites, such as Turkey now blocking Twitter. But this scenario envisions censorship moving from the edge to the core of the internet – the root table of TLDs used by the entire world. It’s a critical stress test to examine how the new IANA mechanism could respond if a future ICANN board bowed to GAC advice for censorship at the root of the Internet.
DelBianco is not suggesting that the current ICANN board would cower over a matter of GAC censorship, but we’ve got no idea what the board is going to look like five, 10 or 20 years from now.
If the safeguard of US stewardship is going away, ICANN’s internal processes need to be tough enough to withstand a GAC that goes rogue and starts demanding things that further infringe liberties.
Does ICANN see a problem?
At a press conference during the Singapore meeting two weeks ago, I asked ICANN chair Steve Crocker and CEO Fadi Chehade if the GAC needed to be be reined in to prevent future abuse.
Crocker responded. I’m quoting my question (which wasn’t as detailed as to include references to GAC Operating Principles) so you know exactly what he’s replying to:
DI: This is about the IANA transition process. I was just wondering: the NTIA says they will not accept a multilateral or intergovernmental solution to this transition process, so does it not follow that there should be some safeguards to prevent the GAC becoming too powerful and stopping it becoming a mini-ITU within ICANN? Is that envisaged as part of this process, to put some kind of restraint on the GAC’s power?
CROCKER: As I said in my remarks this morning, the fact that the end result should not be multilateral or intergovernmental certainly did not mean that governments should not be involved. Governments have to be involved. You’ve asked about what happens if the GAC becomes too powerful.
A big problem is getting more involvement of the GAC. We’re still in the process where the GAC is a maturing organization that’s come a long way and is making ever more contributions and we’re some distance away from being worried about whether the GAC is going to take over or become all too powerful.
The way ICANN is structured is very thoroughly multistakeholder and there are a lot of checks of balances built in so that no single constituency has the ability to become dominant or to take over. I think there would be very strong reactions if that ever started to come into play. So I don’t view it as a imminent concern.
We value and encourage the involvement of governments and we understand that for many many governments it’s a novel experience to participate in an environment in which they’re not the only ones speaking.
In short, he’s saying ICANN needs more government participation via the GAC, albeit carefully counterbalanced within the multi-stakeholder environment.
With that in mind, isn’t it fair to ask whether reforms to the GAC’s Operating Principles are a necessary component of the IANA stewardship transition process?
If ICANN is going independent, its structures need to be robust enough for the long term. Maybe that needs to mean a GAC permanently handcuffed to principles of consensus, to prevent capture.
A Congressional hearing yesterday addressed fears that the decision to cut ICANN loose from US governmental oversight would lead to the internet being seized by backwards regimes.
Long-term DI readers may recall that I’m usually quite snarky whenever a Congressional subcommittee convenes to pretend to be interested in ICANN — with the reason that they usually talk a lot of nonsense.
But this time the majority of the House Subcommittee on Communications and Technology seemed genuinely interested, surprisingly clueful, and relatively low on hyperbolic fearmongering.
The hearing was arranged due to the National Telecommunications and Information Administration’s March 14 decision to remove itself from the DNS root zone management triumvirate.
Whole cartloads of horse pucky have been wheeled out in response, exemplified by breathless editorials about how the world’s most repressive governments will immediately step in to fill the NTIA-shaped void.
It’s Obama’s policy of “appeasement”, designed to allow a shirtless Vladimir Putin to drive a tank directly into the root zone file, if you believe right-leaning American commentators.
There was some of that in yesterday’s hearing, but it was overshadowed by a discussion that seemed to be more interested in addressing genuine concerns and clearing up misconceptions.
Basically, Congressmen are afraid that if the NTIA leaves its role as steward of the DNS root zone, that will somehow lead to other governments taking over and internet freedoms being diminished.
How that fear manifested itself on the committee ranged from thoughtful and understandable expressions of concern and caution to wild-eyed, nonsensical, Putin-obsessed ranting.
It was the job of witnesses Larry Stricking of the NTIA, Fadi Chehade of ICANN and Ambassador David Gross, formerly of the Department of State, to reassure Congress that everything is going to be okay.
Rep. Scalise thinks Putin is magic
At the risk of being accused of sensationalism, I’m starting with the nut-job, but only to illustrate the misinformation ICANN and the NTIA have been dealing with for the last few weeks.
In a way, Rep. Steve Scalise’s portion of the hearing’s Q&A section is a microcosm of the dialogue that has been playing out in the media since the NTIA announcement.
Scalise was the guy on the committee who seems to believe that Russia and China possess the supernatural powers necessary to “take over the internet”. Red Magic, perhaps.
Here’s an exchange with Strickling and Chehade, which began when Scalise asked the panel to address concerns about authoritarian regimes taking over the internet:
STRICKLING: We won’t let that happen, number one.
SCALISE: What’s an assurance of that? It’s good to say we won’t let that happen, it’s nice to hear it, but nobody knows what’s gong to happen. You can’t tell me what’s going to happen. How do you know you won’t let it happen?
STRICKLING: I’m saying that we will not accept a proposal that has that as its outcome. Period. End of story. So it won’t happen. Second, nobody has yet explained to me the mechanism by which any of these individual governments could somehow seize control over the internet as a whole—
SCALISE: You really don’t think that Russia… Look, Russia and China have made it very clear what they want to do to suppress internet freedom. They’ve made it very clear—
STRICKLING: And they do it within their own countries—
SCALISE: At the end of the day y’all are going to come up with some sort of process if you’re going to transfer away, and I say IF — capital I, capital F — if you transfer it away you will come up with some sort of process. Do you really not thnk that Vladimir Putin, with all the other things he’s busy with right now, ain’t going to try to figure out some way to get control? It won’t be through the Russian government directly necessarily, but China and Russia have proven very resourceful at trying to figure out what that process so that they can manipulate it. You can do all the things you want to stop that from happening but at end of the day it comes out to where those countries have figured out a way, like they’ve figured out a lot of other ways too, to do something subversive that goes against all the intentions that we have. You can’t stop that.
STRICKLING: Well, Congressman, what do you think they could do that they can’t do today?
SCALISE: What do you really think…? Look at what Putin’s doing right now! The President just doesn’t seem to take this seriously what he’s doing through Eastern Europe. He’s trying to rebuild, get the old band back together, get the Soviet Union back together, right now before our very eyes. Secretary of State Kerry says the international community won’t accept this. They’re doing it! They don’t care what the international community thinks. They’re invading a country. So what would they do to get control of the internet if you threw something out there? These are real concerns that are being expressed. The other two panelists can touch on this as well.
CHEHADE: Thank you, Congressman. Let me be clear that at ICANN it is impossible for them today to do so. They’ve been trying for 15 years—
SCALISE: Exactly! Which is why it’s working.
CHEHADE: But it’s not because the US actually has the current stewardship role, it’s because of the multistakeholder model. It stops them. Where they will try to do what you’re suggesting is in the international intergovernmental organizations. They’ve been trying to do that there. We want to take away from them any argument that they still go to the UN and try to take over what ICANN does, by making sure that ICANN is free of one government control. To show them that ICANN believes in the multistakeholder model and this great country that created that model trusts it.
Chehade 1 – Scalise 0.
But did Scalise have a point, even accidentally? I’m going to cover that question in a separate post.
Rep Shimkus really wants you to support his bill
A recurring theme of the hearing was the Domain Openness Through Continued Oversight Matters (DOTCOM) Act, introduced by Rep. John Shimkus and others last week.
I called the bill “pointless” when it emerged, as all it does is delay any transition for a year until the US Government Accountability Office has conducted a study of the ramifications.
But there’s also a feeling that the Act would be a distraction at best and may cast more uncertainty than is necessary over the transition process at a critical time for internet governance.
Both Strickling and Chehade prevaricated when Shimkus asked them outright, repeatedly, if they were opposed to the GAO review.
Strickling said he “neither or supports or opposes” such a review but said he was “in favor of full discussion of these issues”.
Chehade, seemingly reluctant to tie himself to a one-government review said he did not have a view, but that he committed to full transparency in the issue.
The fact that Chehade had said that there was “no rush” to conclude the transition process was later used by Shimkus as a gotcha, when he pointed out that the Act’s one-year delay would not have an impact.
On a second panel, Carolina Rossini of the Internet Governance and Human Rights Program of the New American Foundation, gave perhaps a fuller explanation of why there’s caution about the bill.
My concern is that if we wait one year, if we block the transition now and wait one year until we have a report, that is the risk. And that’s the risk that we have non-democratic governments to actually make their voices even louder and manipulate the narrative both in NetMundial and in the [ITU] plenipot in November.
Shimkus said he’d concluded that Chehade and Strickling has “in essence supported the bill”, which I don’t think was necessarily a fair interpretation of what they said.
The two-and-a-half hour hearing had a couple of other diversions — Rep Blackburn going off on a crazy tangent about net neutrality and Rep Latta wasting everyone’s time to score points on behalf of a constituent, a .med gTLD applicant — but otherwise it was generally sane stuff.
The committee seemed to be fairly well-briefed on the subject before them. Most of the Congressmen expressed their concerns about the transition in sensible terms and seemed to take the answers on board.
Special recognition should also be given to Chehade, who won the slightly condescending praise and admiration of some of the committee when he choked up on an abridged version of his immigrant origin story.
He has an uncanny ability to speak to his audience at every occasion and he put it to excellent use yesterday.
Three Republican Congressmen have introduced a bill that would prevent the US government removing itself from oversight of the DNS root zone.
For a year.
The inappropriately titled Domain Openness Through Continued Oversight Matters (DOTCOM) Act is designed to:
prohibit the National Telecommunications and Information Administration from relinquishing responsibility over the Internet domain name system until the Comptroller General of United States submits to Congress a report on the role of the NTIA with respect to such system.
Basically, the NTIA would be barred from walking away from root zone oversight until an analysis of the advantages and disadvantages of the transition was published, which would have to happen within a year.
The report would also have to include a definition of “multi-stakeholder”.
The three Republicans who introduced the bill — Representatives Todd Rokita, John Shimkus, and Marsha Blackburn — either have no idea what they’re talking about, or they’re being intellectually dishonest.
Blackburn said in a press release:
We can’t let the Internet turn into another Russian land grab. America shouldn’t surrender its leadership on the world stage to a “multistakeholder model” that’s controlled by foreign governments. It’s imperative that this administration reports to Congress before they can take any steps that would turn over control of the Internet.
In the month of March alone we’ve seen Russia block opposition websites, Turkey ban Twitter, China place new restrictions on online video, and a top Malaysian politician pledge to censor the Internet if he’s given the chance. This isn’t a theoretical debate. There are real authoritarian governments in the world today who have no tolerance for the free flow of information and ideas. What possible benefit could come from giving the Vladimir Putins of the world a new venue to push their anti-freedom agendas?
This is hysterical nonsense.
Not only has ICANN no intention of allowing the IANA function to be controlled by foreign governments, the NTIA has explicitly stated from the start that no governmental solution would be acceptable.
The current expectation, assuming community talks proceed as swiftly as hoped, is for stewardship of the IANA function to leave the NTIA’s hands when the current contract expires in October 2015.
Even if the DOTCOM (really?) Act were to be passed into US law this year, it shouldn’t have any serious impact on the timing of the root transition.
With that in mind, the three-page bill (pdf) looks quite a lot like an extended press release, rather than a serious attempt to keep the root in US hands.
The ICANN 49 public meeting is kicking off here in Singapore right now, and control of the domain name system is going to be the hottest of hot topics for the next four days.
Two Fridays ago the US government announced its plan to remove itself from oversight of key internet functions currently managed by ICANN, causing a firestorm of controversy in the US.
A lot of the media commentary has been poorly informed, politically motivated and misleading.
According to this commentary, the move means that regimes more repressive that the United States government are going to take over the internet, killing off free speech.
Here I present a backgrounder on the issue, a primer for those who may not be familiar with the history and the issues. ICANN addicts may find the latter half of the piece interesting too, but first…
Let’s go back to basics
The issue here is control over the DNS root zone file. Basically, the root zone file is a 454K text file that lists all the top-level domains that are live on the internet today.
Each TLD is listed alongside the DNS name servers that it is delegated to and control it. So .com has some name servers, .uk has some name servers, .info has some name servers, etc.
If an internet user in San Francisco or London or Ulan Bator tries to visit google.com, her ISP finds that web site by asking the .com zone file for its IP address. It finds the location of the .com zone file (managed by Verisign) in turn by asking the root zone file.
The root zone files are served up by 13 logical root zone servers named A through M, managed by 12 different entities. Verisign runs two. ICANN runs one. Most are US-based entities.
Every root server operator agrees that Verisign’s root is authoritative. They all take their copies of the root zone file from this server. This keeps the data clean and consistent around the world.
So Verisign, in terms of actually sitting at a keyboard and physically adding, deleting or amending entries in the root zone file, has all of the power over the internet’s DNS.
Verisign could in theory assign .uk or .xxx or .com to name servers belonging to Canada or the Vatican or McDonalds or me.
But in practice, Verisign only makes changes to the root zone when authorized to do so by the US National Telecommunications and Information Administration, part of the Department of Commerce.
That’s because Verisign’s power to amend the root zone comes from its Cooperative Agreement with NTIA.
Amendment 11 (pdf) of this agreement dates from 1999, a time before Verisign acquired Network Solutions (NSI) and before ICANN had a name and was known as “NewCo”. It states:
NSI agrees to continue to function as the administrator for the primary root server for the root server system and as a root zone administrator until such time as the USG instructs NSI in writing to transfer either or both of these functions to NewCo or a specified alternate entity.
While NSI continues to operate the primary root server, it shall request written direction from an authorized USG official before making or rejecting any modifications, additions or deletions to the root zone file. Such direction will be provided within ten (10) working days and it may instruct NSI to process any such changes directed by NewCo when submitted to NST in conformity with written procedures established by NewCo and recognized by the USG.
So the power to amend the root zone — and therefore decide which TLDs get to exist and who gets to run them — actually lies in NTIA’s hands, the hands of the US government.
NTIA says its role is “largely symbolic” in this regard.
That’s because the power to decide what changes should be made to the root zone has been delegated to ICANN via the “IANA functions” contract.
What you’re looking at here is a diagram, from the latest IANA contract, showing that whatever changes ICANN proposes to make to the root (such as adding a new gTLD) must be authorized by NTIA before somebody at Verisign sits at a keyboard and physically makes the change.
In the diagram, “IANA Functions Operator” is ICANN, “Administrator” is NTIA, and “Root Zone Maintainer” is Verisign.
What NTIA now proposes is to remove itself from this workflow. No longer would ICANN have to seek a US government rubber stamp in order to add a new TLD or change ownership of an existing TLD.
It’s possible that Verisign will also be removed from the diagram. ICANN runs a root server already, which could replace Verisign’s A-root as the authoritative one of the 13.
NTIA says that the Cooperative Agreement and the IANA contract are “inextricably intertwined” and that it will “coordinate a related and parallel transition in these responsibilities.”
If this all sounds dry and technical so far, that’s because it is.
So why is it so important?
An entry in the DNS root zone has economic value. The fact that the record for .com points to Verisign’s name servers and not yours means that Verisign is worth $7 billion and you’re not.
Whoever has power over the root therefore has the ability to dictate terms to the entities that want their TLD listed.
ICANN’s contract with Verisign makes Verisign pay ICANN $0.25 for every .com name sold, for example.
The contract also forces Verisign to only sell its names via registrars that have been accredited by ICANN.
This gives ICANN, by indirect virtue of its control of the root, power over registrars too.
The Registrar Accreditation Agreement contains terms that require registrars to publish, openly, the names and addresses of all of their customers, for example.
Suddenly, control of the root is not only about lines in a database, it’s about consumer privacy too.
The same goes for other important issues, such as free speech.
Should people have the right to say that a company or a politician “sucks”? Most of us would agree that they should.
However, if they want to register a .sucks domain name in future they’re going to have to abide by rules, developed by ICANN and its community, that protect trademark owners from cybersquatting.
Over the course of many years, ICANN has decided that trademark owners should always have the right to preemptively register any domain name that matches their brands. This will apply to .sucks too.
If I, militant vegetarian that I am, wanted to register mcdonalds.sucks after .sucks becomes available, there’s a significant probability that I’m not going to get the opportunity to do so.
Of course, there’s nothing stopping you and I publishing our opinion of a worthless politician or corrupt company in other ways using other domain names, but it remains true that ICANN has essentially prioritized, for very good reasons, the rights of trademark owners over the rights of other internet users.
Theoretically, at some point in the future, ICANN could amend the Registrar Accreditation Agreement to require registrars to, for example, always deactivate a domain name when they receive a cease and desist letter, no matter how unfounded or spurious, from a trademark lawyer.
Suddenly, the web belongs to the IP attorneys, free speech is damaged, and it’s all because ICANN controls the DNS root.
I’m not saying that’s going to happen, I’m just using this as an example of how ruling the root has implications beyond adding records to a database.
What does US oversight have to do with this?
The question is, does the US removing itself from the root zone equation have any impact on what ICANN does in future? Has the US in fact been a good custodian of the root?
Commentators, many of them Republicans apparently seizing on the NTIA’s move as the latest opportunity to bash President Obama’s administration, would have you believe that the answer is yes.
I’m not so sure.
The US in fact has a track record of using its power in ways that would reduce free speech on the internet.
Back in 2005, there was a controversy about ICANN’s decision to add .xxx — a top-level domain for pornography — to the root zone. Whatever you think about porn, this is undeniably a free speech issue.
The US government, under the Bush administration, was initially ambivalent about the issue. Then a bunch of right-wing religious groups started lobbying the NTIA en masse, demanding .xxx be rejected.
The NTIA suddenly switched its position, and actually considered (ab)using its power over the root zone to block .xxx’s approval and therefore appease the Republican base.
This all came out due to .xxx operator ICM Registry’s Freedom of Information Act requests, which were detailed in the the declaration (pdf) of an Independent Review Panel — three neutral, respected judges — that oversaw ICM’s appeal against ICANN:
Copies of messages obtained by ICM under the Freedom of Information Act show that while officials of the Department of Commerce concerned with Internet questions earlier did not oppose and indeed apparently favored ICANN’s approval of the application of ICM, the Department of Commerce was galvanized into opposition by the generated torrent of negative demands, and by representations by leading figures of the so-called “religious right”, such as Jim Dobson, who had influential access to high level officials of the U.S. Administration. There was even indication in the Department of Commerce that, if ICANN were to approve a top level domain for adult material, it would not be entered into the root if the United States Government did not approve
US lobbying via ICANN’s Governmental Advisory Committee and other channels had the effect that ICANN rejected ICM’s .xxx application. It’s only because ICM was prepared to spend years and millions of dollars appealing the decision that .xxx was finally added to the root.
When you read an article claiming that the US government relinquishing its root oversight role will have a negative effect on free speech, ask yourself what the record actually shows.
The .xxx case is the only example I’m aware of the US leveraging or preparing to leverage its oversight role in any way. On free speech, USG is 0 for 1.
The US is also a powerful member of the Governmental Advisory Committee, the collection of dozens of national governments that have a strong voice in ICANN policy-making.
Under the rules of the new gTLD program, the GAC has right to veto any new gTLD — prevent it being added to the DNS root zone — if all the governments on the GAC unanimously agree to the veto.
Currently, there’s a controversy about the proposed gTLD .amazon, which has been applied for by the online retail behemoth Amazon.
Latin American countries that count the Amazonia region and Amazon river as part of their territories don’t want it approved; they believe they have the better rights to the .amazon string.
Despite this outrage, the GAC initially could not find unanimous consensus to veto .amazon. It transpired that the US, no doubt protecting the interests of a massive US-based corporation, was the hold-out.
In its position paper (pdf) announcing the .amazon veto block reversal, NTIA said the US “affirms our support for the free flow of information and freedom of expression”.
By its own definitions, the US made a decision that harmed free expression (not to mention Amazon’s business interests). It seems to have done so, again, in the name of political expediency.
I’m not saying that the US decision was right or wrong, merely that the record again shows that it’s not the great protector of free speech that many commentators are making it out to be.
What should replace the US?
The question for the ICANN community this week in Singapore and over the coming months is what, if anything, should replace the US in terms of root zone oversight.
The NTIA has been adamant that a “multi-stakeholder” solution is the way to go and that it “will not accept a proposal that replaces NTIA’s role with a government-led or an inter-governmental solution.”
The weirdness in this statement, and with the whole transition process in general, is ICANN is already a multi-stakeholder system.
In light of the US’ longstanding “hands off” approach (with the aforementioned exception of .xxx), does ICANN even need any additional oversight?
Today, legislative power in ICANN resides with its board of directors. The ICANN staff wield executive control.
In theory and under ICANN’s extensive governance rules, the board is only supposed to approve the consensus decisions of the community and the staff are only supposed to execute the wishes of the board.
In practice, both board and staff are often criticized for stepping beyond these bounds, making decisions that do not appear to have originated in the community policy-making process.
The ruling on vertical integration between registries and registrars, where the community could not even approach consensus, appears to have originated with ICANN’s legal department, for example.
There has also been substantial concern about the extent of the power handed to hand-picked advisory panels created by CEO Fadi Chehade recently.
In that light, perhaps what ICANN needs is not oversight from some third party but rather stronger community accountability mechanisms that prevent capture and abuse.
That’s certainly my view today. But I don’t have any particularly strong feelings on these issues, and I’m open to have my mind changed during this week’s discussions in Singapore.
Verisign’s share price is down around 8% in early trading today, after analysts speculated that the US government’s planned move away from control of the DNS root put .com at risk.
The analyst firm Cowan & Co cut its rating on VRSN and reportedly told investors:
With less US control and without knowledge of what entity or entities will ultimately have power, we believe there is increased risk that VRSN may not be able to renew its .com and .net contracts in their current form.
It’s complete nonsense, of course.
The US announced on Friday it’s intention to step away from the trilateral agreements that govern control of the root between itself, ICANN and Verisign. But that deal has no dollar value to anyone.
What’s not affected, as ICANN CEO Fadi Chehade laboriously explained during his press conference Friday, are the contracts under which Verisign operates .com and .net.
The .com contract, through which Verisign derives most of its revenue, is slightly different to regular gTLD contracts in that the US has the right to veto terms if they’re considered anti-competitive.
The current contract, which runs through 2018, was originally going to retain Verisign’s right to increase its prices in most years, but it was vetoed by the US, freezing Verisign’s registry fee.
So not only has the US not said it will step away from .com oversight, but if it did it would be excellent news for Verisign, which would only have to strong-arm ICANN into letting it raise prices again.
Renewal of the .com and .net contracts shouldn’t be an issue either. The main rationale for putting .com up for rebid was to improve competition, but the new gTLD program is supposed to be doing that.
If new gTLDs, as a whole, are considered successful, I can’t see Verisign ever losing .com.
Verisign issued a statement before the markets opened today, saying:
The announcement by NTIA on Friday, March 14, 2014, does not affect Verisign’s operation of the .com and .net registries. The announcement does not impact Verisign’s .com or .net domain name business nor impact its .com or .net revenue or those agreements, which have presumptive rights of renewal.