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Careful What You Wish For: Why ICANN “Independence” is a Bad Idea

ICANN (Internet Corporation for Assigned Names and Numbers) controls the “root” of the naming hierarchy, designating the operators and managers of the top-level domains, like “.com” and “.net” and “.uk.” Since its founding in 1998, ICANN has operated under a “Joint Partnership Agreement” (JPA) with the U.S. Department of Commerce.

The current extension of this agreement is set to expire on September 30 of this year. Some advocates say it’s now time for the U.S. government to cut its ties and let ICANN stand on its own. That’s not a good idea.

Allowing the JPA to lapse would not actually leave ICANN “on its own.” All those critics who have complained for a decade about U.S. government influence would still have concerns about how ICANN operates. They might find it a lot easier to pressure an ostensibly independent ICANN.

Start with the European Union. In the past it has urged a new inter-governmental organization to supervise ICANN. Now the European Commission in Brussels claims to favor letting ICANN operate as an entirely private corporation.

But calling ICANN “private” doesn’t change the fact that it has considerable power to determine the terms on which top level domains link to the Internet. As Professor Milton Mueller noted in Ruling the Root (MIT Press, 2004), ICANN has “monopoly control of an essential resource.” Would the EU’s antitrust enforcers really leave a privatized ICANN to operate entirely on its own?

The EU hasn’t been shy about flexing its regulatory muscle in the past. Three of the five largest fines leveled by the EU for antitrust abuses have been directed at U.S. computer companies. The Commissioner for Competition Policy is now demanding that Microsoft include a different “bundle” of web browsers in its software package if it wants to keep selling in Europe.

Down the road, one can imagine demands from Brussels that ICANN cooperate with EU efforts to tax commercial sales negotiated over the Internet. Or perhaps it will demand a new understanding aimed at forcing top level domain managers to uphold EU privacy standards against U.S. government security measures. Or perhaps the EU will demand that a certain number of ICANN directors be appointed from a list of nominees provided by the EU, itself.

ICANN might try to defend itself by rallying political support in other quarters. It often talks about Internet “stakeholders.” The term is so amorphous it can encompass a variety of advocacy groups, concerned about Internet policy—or governments associated with national domain names (whether the association is notional, as in Mexico or Australia, or directly managerial as in China). A threatened ICANN is likely to be a more politicized ICANN.

In response to litigation threats, ICANN might try to shield its assets by moving them to new locations. What would prevent an “independent” or “private” ICANN from relocating to Barbados or Antigua or some other off-shore haven? Such a move would not prevent the U.S. government (or the EU) from applying pressure, but it would make it harder to pursue claims in U.S. courts.

Or, ICANN might decide to throw itself into the arms of a “willing protector,” such as the International Telecommunication Union. That would surely entangle technical disputes about Internet governance with ongoing demands for western assistance to developing countries.

There may well be better arrangements for international governance of ICANN’s activities. But they need to be thought through and carefully negotiated. They won’t come into being just by turning ICANN loose and hoping for the best.

In the meanwhile, we ought to remember that abstract or ideological objections don’t always translate into support for particular workable alternatives. If the special role of the U.S. government in Internet governance raises hackles, it’s far less strange than continuing to give veto rights to Britain and France (but not Germany or Japan or India) on the UN Security Council—just because Britain and France looked like great powers in 1945.

The UN has wrestled with Council reform proposals for more than 15 years without reaching any consensus. Japan demands a permanent Council seat if Germany gets one, but India demands the same treatment as Japan and Brazil as India—and all of them have opponents who prefer the status quo to any reform that elevates a regional rival.

So, too with NATO. France withdrew from the military structure of the alliance in 1967 to protest U.S. dominance. But other countries did not want to risk U.S. diminution of U.S. commitment to European defense and did not trust France to establish a reliable alternative. So top commands have stayed with U.S. appointees—an arrangement even the French now accept.

Just as in these cases, it may turn out that those who complain in public about the U.S. role in ICANN would, when confronted with the practical alternatives, decide in private that having ICANN as a U.S. protectorate is not such a bad idea. If the alternative is to risk the possibility of an “independent” ICANN ending up as a subsidiary of the ITU, with its majority of “developing” nations, even the EU might well decide the status quo is a pretty attractive option.

The longer paper upon which this article is based can be accessed here (PDF).

By Jeremy Rabkin, Professor of Law at George Mason University

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Co-designer of the TCP/IP Protocols & the Architecture of the Internet


Red herrings and strawmen Suresh Ramasubramanian  –  Jun 23, 2009 9:17 AM

How very alarmist.

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