The future of Internet governance: should the U.S. relinquish Its authority over ICANN?

How ICANN and the Internet domain name system are ultimately governed may set an important precedent in future policy debates over how the Internet should be governed, and what role governments and intergovernmental organizations should play. Overview Currently, the U.S. government retains limited authority over the Internet’s domain name system, primarily through the Internet Assigned Numbers Authority (IANA) functions contract between the National Telecommunications and Information Administration (NTIA) and the Internet Corporation for Assigned Names and Numbers (ICANN). By virtue of the IANA functions contract, the NTIA exerts a legacy authority and stewardship over ICANN, and arguably has more influence over ICANN and the domain name system (DNS) than other national governments. On March 14, 2014, NTIA announced the intention to transition its stewardship role and procedural authority over key Internet domain name functions to the global Internet multistakeholder community. To accomplish this transition, NTIA has asked ICANN to convene interested global Internet stakeholders to develop a transition proposal. NTIA has stated that it will not accept any transition proposal that would replace the NTIA role with a government-led or an intergovernmental organization solution. Currently, Internet stakeholders are engaged in a series of working groups to develop a transition proposal. Their goal is to submit a final proposal to NTIA by summer 2015. NTIA must approve the proposal in order for it to relinquish its authority over the IANA functions contract. While the IANA functions contract expires on September 30, 2015, NTIA has the flexibility to extend the contract for any period through September 2019. Concerns have risen in Congress over the proposed transition. Critics worry that relinquishing U.S. authority over Internet domain names may offer opportunities for either hostile foreign governments or intergovernmental organizations, such as the United Nations, to gain undue influence over the Internet. On the other hand, supporters argue that this transition completes the necessary evolution of Internet domain name governance towards the private sector, and will ultimately support and strengthen the multistakeholder model of Internet governance. Legislation has been introduced in the 113th and 114th Congresses which would prevent, delay, or impose conditions or additional scrutiny on the transition. In the 113th Congress, a provision in the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113-235) provides that during FY2015, NTIA may not use any appropriated funds to relinquish its responsibility with respect to Internet domain name system functions. In the 114th Congress, H.R. 805 (the DOTCOM Act of 2015) would prohibit NTIA from relinquishing its authority over the Internet domain name system until the Government Accountability Office (GAO) submits a report to Congress examining the implications of the proposed transfer. The proposed transition could have a significant impact on the future of Internet governance. National governments are recognizing an increasing stake in ICANN and DNS policy decisions, especially in cases where Internet DNS policy intersects with national laws and interests related to issues such as intellectual property, cybersecurity, privacy, and Internet freedom. How ICANN and the Internet domain name system are ultimately governed may set an important precedent in future policy debates—both domestically and internationally—over how the Internet should be governed, and what role governments and intergovernmental organizations should play

Internet Governance: the State of Play

The Global Forum on Internet Governance held by the UNICT Task Force in New York on 25-26 March concluded that Internet governance issues were many and complex. The Secretary-General's Working Group on Internet Governance will have to map out and navigate this complex terrain as it makes recommendations to the World Summit on an Information Society in 2005. To assist in this process, the Forum recommended, in the words of the Deputy Secretary-General of the United Nations at the closing session, that a matrix be developed "of all issues of Internet governance addressed by multilateral institutions, including gaps and concerns, to assist the Secretary-General in moving forward the agenda on these issues." This paper takes up the Deputy Secretary-General's challenge. It is an analysis of the state of play in Internet governance in different forums, with a view to showing: (1) what issues are being addressed (2) by whom, (3) what are the types of consideration that these issues receive and (4) what issues are not adequately addressed

ICANN and Antitrust

The Internet Corporation for Assigned Names and Numbers (ICANN) is a private non-profit company which, pursuant to contracts with the US government, acts as the de facto regulator for DNS policy. ICANN decides what TLDs will be made available to users, and which registrars will be permitted to offer those TLDs for sale. In this article we focus on a hitherto-neglected implication of ICANN's assertion that it is a private rather than a public actor: its potential liability under the U.S. antitrust laws, and the liability of those who transact with it. ICANN argues that it is not as closely tied to the government as NSI and IANA were in the days before ICANN was created. If this is correct, it seems likely that ICANN will not benefit from the antitrust immunity those actors enjoyed. Some of ICANN's regulatory actions may restrain competition, e.g. its requirement that applicants for new gTLDs demonstrate that their proposals would not enable competitive (alternate) roots and ICANN's preventing certain types of non-price competition among registrars (requiring the UDRP). ICANN's rule adoption process might be characterized as anticompetitive collusion by existing registrars, who are likely not be subject to the Noerr-Pennington lobbying exemption. Whether ICANN has in fact violated the antitrust laws depends on whether it is an antitrust state actor, whether the DNS is an essential facility, and on whether it can shelter under precedents that protect standard-setting bodies. If (as seems likely) a private ICANN and those who petition it are subject to antitrust law, everyone involved in the process needs to review their conduct with an eye towards legal liability. ICANN should act very differently with respect to both the UDRP and the competitive roots if it is to avoid restraining trade.Comment: 29th TPRC Conference, 200

Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution

The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the root. Control of the root provides singular power in cyberspace. This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U. S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers (ICANN), a formally private nonprofit California corporation. DoC then signed contracts with ICANN in order to clothe it with most of the U. S. government\u27s power over the DNS, and convinced other parties to recognize ICANN\u27s authority. ICANN then took regulatory actions that the U. S. Department of Commerce was unable or unwilling to make itself, including the imposition on all registrants of Internet addresses of an idiosyncratic set of arbitration rules and procedures that benefit third-party trademark holders. Professor Froomkin then argues that the use of ICANN to regulate in the stead of an executive agency violates fundamental values and policies designed to ensure democratic control over the use of government power, and sets a precedent that risks being expanded into other regulatory activities. He argues that DoC\u27s use of ICANN to make rules either violates the APA\u27s requirement for notice and comment in rulemaking and judicial review, or it violates the Constitution\u27s nondelegation doctrine. Professor Froomkin reviews possible alternatives to ICANN, and ultimately proposes a decentralized structure in which the namespace of the DNS is spread out over a transnational group of policy partners with DoC

Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution

The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the root. Control of the root provides singular power in cyberspace. This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U. S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers (ICANN), a formally private nonprofit California corporation. DoC then signed contracts with ICANN in order to clothe it with most of the U. S. government\u27s power over the DNS, and convinced other parties to recognize ICANN\u27s authority. ICANN then took regulatory actions that the U. S. Department of Commerce was unable or unwilling to make itself, including the imposition on all registrants of Internet addresses of an idiosyncratic set of arbitration rules and procedures that benefit third-party trademark holders. Professor Froomkin then argues that the use of ICANN to regulate in the stead of an executive agency violates fundamental values and policies designed to ensure democratic control over the use of government power, and sets a precedent that risks being expanded into other regulatory activities. He argues that DoC\u27s use of ICANN to make rules either violates the APA\u27s requirement for notice and comment in rulemaking and judicial review, or it violates the Constitution\u27s nondelegation doctrine. Professor Froomkin reviews possible alternatives to ICANN, and ultimately proposes a decentralized structure in which the namespace of the DNS is spread out over a transnational group of policy partners with DoC

Space Cops and Cyber Cowboys: An Institutional Comparison of the Governance of Space Exploration and the Internet

A growing concern for human society is the question of technology, how they are to be used and how can they best be governed. The very question of whether technology is governable remains for the most part unexplored. This work will seek to examine these important questions. By utilizing a historical institutional perspective, two case studies of the governance of technologies that have emerged in the last century will be explored. Space Exploration technologies and the advanced networking of computers known as the Internet will serve as the case to illuminate the question of governing technology. Deep qualitative functional analysis of both the primary and peripheral institutions will provide insight into how technology is governed in theory and in practice, as well as how institutions are created and change over time. By moving beyond questions of governance for states and societies, this work will attempt to contribute to the literature of political science as the study of governance broadly speaking. This work will contribute to and speak to newer works on the governance of non-explicitly political realms, as opposed to more traditional approaches to the study of governance, perhaps allowing new insight and avenues of research into both the question of technology and governance more broadly. Distinct policy prescriptions will be created to both better govern these particular technologies as well as lay the foundation for effective institutional governance of technologies in the future