Parminder Jeet Singh

 The real problem of the U.S.’s executive, legislative and judicial control over ICANN and the root server will not change with a shift to what is effectively internal oversight

ICANN, or the Internet Corporation for Assigned Names and Numbers, is the U.S.-based body that runs the Internet’s central directory and coordinates its key technical functions. There is a lot of buzz currently around finalisation of the proposal for ICANN’s oversight moving from the U.S. government to a multistakeholder group. Since this group elects ICANN’s board of directors in the first place, it can be said that ICANN will now be an independent organisation, with no external oversight. This group, which prefers to call itself the “multistakeholder ICANN community”, consists of some sub-groups each with different technical governance roles, and different kinds of openness to non-members. 

This ‘community’ is essentially a few hundred people at the most, with steep power gradations within it. There exists a strong in-group culture and ideology, and various kinds of meritocracies. This has meant that the group is dominated by the industry, which can pay for participants of ‘high quality’, with staying power (for the endless email discussions that could culminate in ‘decisions’), and who are well-versed in the U.S. corporate lingo. Don’t expect to find words like democracy and representation ever mentioned in this group. It is mostly U.S.-based industry, overwhelming white men, some from Europe, plus, co-optation of, largely, a few elite groups from other countries. ICANN’s board, its real decision-making body, comes from this ‘community’, and now its oversight is to be internalised within the same group. 

Does it mean that nothing will change with the oversight transition? Well, not exactly. It is an important step towards making ICANN a genuinely global organisation. But only if it is indeed just the first step, to be followed by more steps, which is not clear at present. To understand the implications of this step, one must look at three things: what changes, what does not change, and what may even change for the worse.
If the proposal is accepted by the U.S. government, as is likely, what would change is significant. Currently, ICANN is basically a contractor carrying out some tasks, of which the substantive authority vests with the U.S. government. The fact that the U.S. has not interfered with these tasks in any major way does not means that its de jure authority is not meaningful. The U.S. government will now be divested of this authority, and ICANN will become an independent body in managing its domain names-related policy work, and the Internet’s root zone file, containing information about Internet names and numbers, addresses, which are copied and replicated by other servers the world over. 

What doesn’t change

More significant, at least for those outside the U.S., is what does not change. The main problem that non-U.S. actors have with the U.S. control over ICANN is that it can unilaterally interfere with the ICANN’s policy process, and the Internet’s root server (containing the authoritative root zone file). Post transition, it will no longer be able to do so with a direct fiat to ICANN. However, the numerous judicial, executive and legislative powers held by the U.S. government over ICANN as an American organisation remain unchanged. 

The fear was never of the U.S. casually interfering with ICANN or the root server. It is exceptional situations that remain a problem area. The U.S. President has various kinds of emergency powers regarding key infrastructure, which is likely to extend to ICANN and the root server. Then there is the Office of Foreign Assets Control, which has seized foreign assets in the U.S. on the flimsiest of geopolitical grounds. A country’s domain name, like .in, in the root server can be considered as its asset inside the U.S. It is also possible that the Federal Communications Commission, having recently declared Internet service as a public utility, might at will seek jurisdiction over ICANN-managed critical Internet resources. And, of course, the U.S. legislature can make any kind of law affecting any aspect of ICANN and the root server.

The greatest likelihood of the U.S. government’s interference comes from the judiciary. A few adult content companies have legally challenged the ICANN-mandated .xxx domain name. A U.S. court has taken the case on file, thus exercising its jurisdiction over an ICANN policy decision. If the court strikes down this decision, it will immediately unravel ICANN’s pretensions of global legitimacy. With the new round of generic top level domains (gTLDs) whereby every big company is encouraged to get its own domain name, like .abcd, it is only a matter of time before a U.S. court comes up with such a decision. Say, a U.S. pharmaceutical company claims in a U.S. court that an Indian generic drug manufacturer is infringing its patents globally, and therefore its assets, including its gTLD, in the U.S., must be seized. The U.S. court, if it agrees, can direct both ICANN to suspend the domain name and the root server operator to delete it from the root file. 

All in all, therefore, the real problem of the U.S.’s executive, legislative and judicial control over ICANN and the root server will not change with the current proposal. This is a serious matter. What is required is to get ICANN incorporated under international law, with host country immunities for an international organisation. 

Jurisdiction issue

Despite strong exhortations by some of its members, the key question of jurisdiction over ICANN was not taken up by the group that developed the proposal. This issue has been moved to the second phase of this group, which could go on beyond the expected date of transition. This remains the main issue to resolve for any real change and progress. But the commitment of the U.S. government and other U.S. actors to consider any such change remains suspect. The U.S. government and the board repeatedly put up redlines whenever there were structural proposals that could ensure a greater latitude within the system to embrace change. And they succeeded at every point, because the so-called ‘community’ was eager to keep the U.S. government pleased, lest they simply refuse the transition altogether. This is hardly a democratic way of decision-making on such an important issue as ICANN’s new oversight mechanism. But the ‘community’ remains most interested to have power fully transferred to itself, even if within U.S.’s jurisdictional oversight, rather than go by larger global public interest concerns. 

It is feared that before the U.S. government accepts the transition proposal it will put in further safeguards against jurisdiction changes, possible as a fundamental by-law for ICANN which is very difficult to change. Or it could bring in a specific legislation in this regard, or threaten one in case such a thing is ever attempted. This will nullify all or any gain from the transition process. 

That brings us to the last point, about what could have changed for the worse. ICANN’s oversight will shift to a somewhat largish group that in the first place elects the board, and has a narrow base. It is feared that the concerned industry’s narrow interests will entirely take over, with no restraints. The U.S. government at least had no reason to work for these interests. (A few years back, it rapped ICANN on its knuckles when it allowed .com owners to steeply raise domain name price, and got it reversed.) 

Unsure of its final status, ICANN has been cautious when governments, especially the stronger ones, raised public policy issues, and mostly chose to be accommodative (like in the .amazon and .wine cases). But with an independent status finally settled, ICANN and its inbred community is likely to get much more unabashed in its narrow self-interest-based and commercial pursuits, disregarding global public interest. What ICANN needs, therefore, apart from coming under international jurisdiction, is some kind of external oversight, which, however, need not be of governments. 

(Parminder Jeet Singh works with the Bengaluru-based NGO, IT for Change. He has been an adviser to the Chair of the United Nations Internet Governance Forum. E-mail: parminder@itforchange.net)

http://www.thehindu.com/opinion/op-ed/why-the-internet-isnt-just-free-yet/article8386172.ece