In a stunning rebuke of ICANN’s assertion that it had achieved
sufficient accountability and professional stature to justify
termination of its unique relationship with the U.S. government, the
Chairman of the House Committee on Energy and Commerce as well as the
Chairman of its Internet Subcommittee, along with eight other Committee
members, dispatched a joint letter on August 4th to Commerce Secretary Gary Locke urging that the relationship between ICANN and the U.S. be made
permanent and strengthened. While the letter is signed only by
Democratic members of the Committee, it follows on the heels of a June
4th ICANN oversight hearing (see https://www.internetcommerce.org/node/190)
at which ICANN encountered strong bipartisan criticism. The letter
apparently stems from a feeling that it is time to move beyond repeated
renewals of temporary MOUs and JPAs – and that the best way to achieve
this is to enter into a strengthened arrangement under a “permanent
instrument”.
The letter calls for the U.S to take steps to:
• Ensure that the Department of Commerce continues in its present relationship with ICANN.
• Provide for periodic review of ICANN’s performance in a number of
key areas – including management of existing gTLDs and the
implementation of any new ones.
• Outline steps to improve ICANN accountability.
• Create a mechanism for implementing new gTLDs and IDNs that
assures appropriate consultation with stakeholders (which we note, by
implication, seems to assert that such consultation on new gTLDs does
not yet exist).
• Ensure that ICANN assure timely public access to accurate and
complete WHOIS information critical to tracking malicious websites and
domain names.
• Include commitments that ICANN will remain a U.S.-based not-for-profit corporation.
While Congress cannot bind the Obama Administration, it would be
typical for members of the President’s party to engage in discussions
prior to sending such a letter to assure that it is generally
well-received. The current Joint Project Agreement between the U.S. and
ICANN expires on September 30th, so the Administration must show its
policy hand within the next few weeks. Should the Obama Administration
decide to request an extension of the JPA, much less a strengthened
permanent relationship, there is a possibility that ICANN could refuse
to enter into such an arrangement and that a confrontation could be
ignited. However, as the letter notes in passing, the U.S trump card is
the separate contract for the IANA functions of running the root zone
servers.
An Obama Administration call for a permanent relationship will
undoubtedly set off strong protests from other nations and
organizations that have called for termination of ICANN’s special
relationship with the U.S. In addition to these international
repercussions, the mechanisms called for by these Congressional Members
could well delay the introduction of new gTLDs.
While the full implications of this unexpected communication cannot yet
be envisioned, expectations that the U.S. would request a short
extension of the JPA in contemplation of full ICANN independence in the
next year or two may well need revision. All we can advise is to stay
tuned as September 30 approaches.