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New Agreement Declares ICANN Independent

The Internet Corporation for Assigned Names and Numbers (ICANN) has reached a major milestone today with a new agreement in place with the U.S. Department of Commerce allowing the organization greater independence and giving more countries oversight of the organization. ICANN CEO, Rod Beckstrom, in a video interview says: “With the conclusion of the JPA [the Joint Project Agreement (JPA) between the ICANN and the U.S. Department of Commerce], it means we’ve hit that target after 11 years and we’re now mature enough to move on to the next phase of our global development. So it’s a real exciting time for us to enter a whole new level as an organization.” Also see the CircleID coverage and post by the Executive Director of NetChoice, Steve DelBianco.”

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Independent - not so fast Karl Auerbach  –  Sep 30, 2009 9:49 PM

That “Affirmation” is hardly a grant of independence to ICANN.

Rather, there are many other agreements in place that have a significant, in fact, overriding significance.

For example, NTIA is still apparently the ultimate authority over new TLDs in that NTIA is the one, not ICANN, that tells Verisign what TLDs to edit into the root zone file that is disseminated to a virtually independent body of root server operators who are under no obligation to use that root zone file at all.

And what about the IANA “contract”?

Nor does this “Affirmation” answer the question whether ICANN is a US government instrumentality.  That has an effect on the question of ICANN’s immunity, or non-immunity, to anti-trust laws in the US and elsewhere.

As for NTIA - it cited very vague sources of authority.  Since those source of authority do not mention anything about the internet, much less DNS, those sources, if one accepts them, say that NTIA now has the power to obligate US corporations to subject their business decisions to a body of foreign government officials.

That “Affirmation” (one wonders how long they spend with a thesaurus looking for euphemistic alternatives to the word “agreement” or “contract”) simply imposes the intellectual-property protection industry position that requires personally identifiable information about people engaging in private business relationships to be published to any and all 24x7x365.  Did Mr. Orwell write this “Affirmation”?

One must also wonder whether this pulls the rug out from under the agreements and legal settlements between ICANN and Verisign (and PIR and other legacy TLD operators).  If one accepts the premise of this “Affirmation” that the power to control the legacy TLDs derives from the US Gov’t then it becomes very unclear that ICANN still has any color of title or authority to delegate to Verisign or PIR or whoever to operate those TLDs much less to give those operators the ability to charge monopoly rent registry fees (a number now amounting to the better part of a billion $USD every year) to those who acquire names in those TLDs.

I would characterize this “Affirmation” as a collection of nearly empty euphemisms wrapped up in public relations hyperbole.

Which brings me to the list of “reactions” - It is extremely obvious that ICANN and NTIA gave advance preview access to a select number of cheer leading insiders in order to accumulate a nice opening day press release.  It seems rather clear that ICANN and NTIA did not want anyone raining on their parade.  But it does make it clear that ICANN and NTIA have colluded to create a manufactured palate of public opinion.

All in all, ICANN remains a body that has its legal existence as a “public benefit” corporation that excludes the public from its decision making process in any role greater than that of an observer.  ICANN is opening up to allow perhaps one, yes only one, publicly elected director.

ICANN remains about as accountable to the public good as was Enron.  And ICANN remains a captured regulatory body that operates largely under the control of the intellectual property protection industry and the incumbent TLD registries to whom ICANN grants a yearly gift of nearly $1,000,000,000 from the pockets of internet users.

This “Affirmation” allows ICANN to remain the internet’s mediaeval trade guild that chooses what DNS products shall or shall not be sold, the terms of sale, the price structure, the trademark-friendly dispute law and its system of courts, and, most importantly, chooses who may or may not become a vendor in the domain name marketplace.  ICANN is “restraint of trade”.  Whether it is unlawful under the laws of the US or elsewhere is a matter not yet squarely faced.  This “Affirmation” merely continues the muddy waters.

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