On Wednesday, January 13, 2009 the Advisory Committee to the Congressional Internet Caucus held its annual “State of the Net Conference”. This event, attended by hundreds, brings together members of Congress and their staff, regulatory agency personnel, lawyers and lobbyists, public interest groups and think tanks, and others interested in technology policy – and often serves as a jumping off point for Congressional inquiries and legislative activities for the remainder of the year. ICA has been an Advisory Committee member since 2007.
This year’s event featured a panel discussion on the “Future of ICANN and Internet Governance”. Original plans for the event did not include any discussion of ICANN, but at a late 2008 planning meeting the ICA strongly urged its inclusion as a means of focusing Congressional attention on the administrator of the domain name system (DNS) in an important year to be filled with momentous events, including:
- The potential opening of the application process for new generic top level domains (gTLDs) in the summer.
- Termination of the existing Joint Project Agreement (JPA) providing for U.S. oversight of ICANN in September, with the Obama Administration’s views on renewal or termination unknown.
- Implementation of the radically revised structure and working procedures for ICANN’s policymaking body, the Generic names Supporting Organization (GNSO).
Our arguments carried the day and the session was added to the schedule.
Jeff Bruggerman of AT&T kicked off the discussion. He described AT&T’s participation in both ICANN and the UN’s Internet Governance Forum (IGF), with the former focused on DNS administration and the latter on expanding Internet access around the planet. ICANN has been a private sector-led organization from its inception, and AT&T wants that to continue through a transparent and accountable process that accords to the diversity of viewpoints and the importance of its decisions. Stability of the DNS is also a key consideration, and Department of Commerce (DOC) oversight helps assure that while allaying fears that an independent ICANN may be subject to “capture” by other forces less hospitable to the private sector.
Steve DelBianco of NetChoice asserted that ICANN’s rules were as topsy-turvy as those of Alice in Wonderland. The Internet is ubiquitous but vulnerable, and that vulnerability can be exacerbated by wrong decisions. He cited the recent DOC letter that opposed the rollout of new gTLDs in advance of a supportive economic study – a letter he asserted the Obama transition team had signed off on – and urged Congress to look closely at ICANN’s plans in this area. NetChoice believes that major corporations will have to defensively register thousands of domains at each new gTLD, and that a Congressional inquiry should review ICANN’s activities as well as how it might operate if freed from U.S. oversight. He decried the fact that an ICANN spokesperson had dismissed 300-plus critical comment letters from the global business community as those of a single stakeholder, and expressed concern that DOC withdrawal would permit regulatory agencies around the world to assert jurisdiction over ICANN activities.
Paul Levins, a senior ICANN staff person now based in Washington, described ICANN as a “talking shop” that welcomes all opportunities for dialogue. He then asserted a series of “facts”:
- Internet growth is continuing, with access in underserved areas still in its infancy.
- Domains names have grown from 40 to 180 million over the past decade. Meanwhile accredited registrars have expanded from 100 to 945 and this has brought tremendous competition to domain registrations, resulting in average domain registration fees plunging from $70 to $6.
- $3.5 trillion in e-commerce has been a foundation for global economic growth
- ICANN’s approach is one of coordination, not top down control.
Turning to its relationship with the U.S., Levins noted that there have been seven memorandums of understanding since ICANN’s launch in 1998, and thirteen progress reports. The use of such terms as transition and termination misdirects the focus of discussion, as the JPA is really about delivery and permanence – and “ICANN is already an independent organization”. ICANN believes that the JPA is a form of politicized oversight and is becoming politically destabilizing, with the world community questioning its confidence in the ICANN model and asking if it will deliver on its promise, while raising issues of control and the threat of an alternate root challenging the present DNS. Therefore, prolonging the JPA actually threatens the business community; ICANN’s model works and should now be cemented in place.
Everton Lucero of the Embassy of Brazil began by referring to the 2005 World Summit on the Information Society (WSIS) held under UN auspices in Tunis and its principle that “no country should have power over another’s TLD”. Noting that ICANN is a California non-profit corporation, and that any dispute with ICANN is subject to California jurisdiction, he declared “Brazil does not want to be subject to that”. The fact that the DOC controls the root server functions through IANA and has the power to approve or block decisions that affect Brazil is also of concern. Therefore, ICANN needs to go to an “international structure” – but that doesn’t mean a UN agency model, as long as it is “truly international” in its relationship to country code TLDs (ccTLDs), with no subordination of ICANN to any one nation. While the world was thankful that the U.S. had created the Internet and launched ICANN, the time had come to address questions of legitimacy and the decision-making process.
Following these opening comments, further discussion ensued, during which Paul Levins asserted that U.S. oversight would not be replaced by anyone else.
When the program was opened up to audience questions, I asked Mr. Levins whether ICANN would slow down the new gTLD process given the substantial controversy evident in the first comment round, the extensive suggestions received, and the possibility that a mid-summer launch could ignite a firestorm of controversy immediately prior to the U.S. decision on its oversight role. I asked if, at a minimum, ICANN would delay publication of version 2 of the draft Guidebook until after an opportunity for public dialogue at its upcoming Mexico City meeting in early March. Levins responded that all comments would be taken into account before proceeding to the next stage, and agreed with my assertion that it is “more important to get this done right than get it done quickly”. Steve DelBianco chimed in, agreeing that ICANN did want to be responsive, and suggested that new gTLDs be slowed down while non-ASCII International Domain Names (IDNs) go forward to accommodate the needs of underserved regions.
Another audience member asked what the U.S. role would be if its oversight role ended, and Levins noted that it would still control IANA and that ICANN would remain headquartered in California — while “any other legal personality” for ICANN would be supplementary, not a replacement. He also noted that ICANN had created a Washington office and intended to stay in close communication with the “center of energy and innovation that built ICANN”.
The program clearly raised many questions that were not fully answered, and the ICA will remain fully engaged with Congress, the Executive Branch, and ICANN as key decisions affecting domainers are made in 2009.