Keep the Same Address

Will an Internet Governance Decision Have Global Implications?

SOURCE: SP At the end of the month, the agreement between the Internet Corporation for Assigned Names and Numbers, or ICANN, and the U.S. Department of Commerce expires. Hopefully, not much will change.

Over the past fifteen years, the Internet has evolved into a critical part of the global economic and political infrastructure. Its growing importance has drawn the attention of government officials from around the world, who are now debating issues that will determine the network’s future. At issue are matters that include network neutrality, search engine competition, privacy, and cyber-security.

Also important is the future of the little-known organization that manages much of the technical infrastructure for the Internet. As policymakers prepare to make major changes to the oversight structure that has supported growth and stability for more than a decade, it is critical to ensure that those changes preserve and enhance the Internet’s core values.

The freedom, openness, and low barriers to entry we’ve come to expect from the Internet are not happy accidents, but rather the result of a carefully crafted technical policy framework. In the case of the Internet’s system for translating numerical IP addresses assigned to individual computers—such as 192.168.1.0—into domain names like www.scienceprogress.org, that framework remains a work in progress.

The Domain Name System, or DNS, is the Internet’s central nervous system. Its openness, security, and stability are prerequisites for all Internet communication. In 1998, the U.S. government, academics, and businesses who provided the Internet’s initial technology, connectivity, and content created a new organization to manage the DNS called the Internet Corporation for Assigned Names and Numbers. ICANN was chartered as an international not-for-profit corporation with the mission of “preserving and enhancing the operational stability, reliability, security, and global interoperability of the Internet.”

Since 1998, ICANN has managed DNS under a pair of agreements with the U.S. Department of Commerce. While not without hiccups, this arrangement has been remarkably effective. ICANN’s internationally representative board of directors sets global Internet policy, while the Commerce Department helps to ensure that ICANN reaches its organizational goals of being more accountable, transparent, and representative.

But now that arrangement is set to undergo the biggest change since its inception, as one of the key agreements between ICANN and the U.S. government expires at the end of this month. The question of what, if anything, should replace that agreement has been the subject of intense debate, and the answer will shape the next stage in the Internet’s evolution.

Future policies should preserve the successful components of the ICANN system while improving accountability for the organization.

ICANN history

The creation of ICANN in 1998 marked a bold policy experiment. The Clinton administration’s decision to charge a consensus-driven nonprofit organization with the management of a critical global resource was unprecedented and untested.

ICANN was created from whole cloth and presented with a daunting set of technical and policy responsibilities. While the Commerce Department committed from the outset to allow ICANN to operate largely autonomously, it established a pair of agreements to protect the newly formed entity and to guide its development.

One of those agreements, the Joint Project Agreement, or JPA, between the Department and ICANN expires at the end of September. The JPA and its predecessor agreements have been the primary tools used to track ICANN’s progress and recommend course corrections on critical issues like accountability, representation, and transparency. While it is clear that the agreement will expire, what happens next remains a mystery.

Some in the international Internet community, including ICANN officials, argue that the agreement has outlived its usefulness and should expire without being replaced, letting ICANN assume full autonomy. Others, including representatives of many governments, argue that the lightweight agreement should be replaced with a mechanism that gives world governments the final say in ICANN decisions.

Somewhere in the middle are those who have called on the Commerce Department and ICANN to replace the JPA with a new agreement that addresses major challenges facing ICANN: accountability, transparency, and the capacity of the organization to resist “capture” by external forces. None of these choices are ideal, and the ultimate determination will be surely be met by criticism from some corner of the Internet community.

By creating a new agreement, the Commerce Department tests the patience of governments that have called on the United States to relinquish its unique relationship with ICANN. On the other hand, simply allowing the agreement to expire would leave ICANN without any meaningful accountability mechanism and could expose the organization to capture by governments or government cartels. And finally, opening the door to multi-governmental management could destroy the underlying model that has served the Internet so well.

Nongovernmental oversight in jeopardy

The most daring aspect of the ICANN experiment was putting power squarely in the hands of nongovernmental actors. Technologists, infrastructure providers, companies, and community leaders were called upon to lead the new organization, while governments were relegated to an advisory role within the process. This private-sector-led approach forms the core of ICANN’s identity.

More than a decade later, that revolutionary approach has proven prescient, as ICANN’s unique structure has supported necessary engagement by the operators and users of the DNS infrastructure.

The private-sector-led approach has allowed for the creation of consensus policies to protect users and enhance the effectiveness of the system, while also serving as a check against regressive overregulation of Internet innovation.

When the Commerce Department sought public comment on ICANN’s organizational progress late in 2007, there were many calls for changes and improvements within the organization, but there was also a nearly uniform agreement that the model itself was worth preserving. Indeed the only consistently vocal critics of ICANN model have been governments that seek a more active role in Internet governance.

Beginning with the United Nations World Summit on the Information Society in 2003, the governments of China, Russia, and Brazil led the call for greater government involvement in the management of the domain name system. As the JPA draws closer to expiring, those calls have grown louder, and have been joined by other nations.

On a related front, the UN’s International Telecommunications Union, led by Secretary General Hamadoun Toure, has mounted a push to assume greater involvement in the oversight of ICANN. These efforts represent a very real threat to the freedom and openness we have come to expect on the Internet.

The philosophy that allows American citizens to enjoy a free, uncensored Internet experience, despite severe restrictions elsewhere in the world, is one that pushes regulatory activity to the “edge” of the Internet rather than its “core.” Under this longstanding model, governments are able to tailor Internet regulations to their own national rules, without affecting the Internet experience of people elsewhere in the world.

A move toward greater governmental control would be a seismic shift for ICANN and could occur in one of two ways. Although unlikely, ICANN and the U.S. government could choose to move toward one of the multi-governmental oversight proposals that have been offered, such as the European call to create a “G12 for the Internet.” The second and more troubling scenario is letting governments seize greater control over ICANN just as it severs its traditional ties with the U.S. government. Of course, the likelihood of either scenario hinges mainly on what ICANN and the Commerce Department ultimately decide.

True accountability remains elusive

As effective as ICANN’s unique structure may be, it also poses unique challenges. The question of how to establish real accountability within the ICANN process has dogged the organization since its inception, and has reached a critical point as ICANN moves toward greater autonomy.

Under ICANN’s bottom-up structure, a diverse group of constituencies work to develop polices, which are passed upward through more structured “supporting organizations” and finally to the ICANN board of directors, which has final say in all ICANN policy decisions.

While complex and slow moving, the process is fairly effective at promoting consensus policy supported by a broad cross-section of the Internet community. The ICANN board, in turn, tends to do a good job of respecting the consensus-driven process by moving ahead with policies supported by the community. But as with any system, there are flaws. Sometimes the board acts contrary to the guidance of the community it is chosen to serve. For example, ICANN currently allows domain names and email addresses only in our Latin alphabet, while over half the planet uses alphabets other than Latin. Just when ICANN was poised to allow non-Latin alphabets, the board voted to fast-track only the government-controlled domains (like .eg for Egypt, .sy for Syria), while leaving global domains (like .org and .com) on the slow track.

It is in these instances that the ICANN process fails, because there exists no meaningful way for members of the ICANN community to appeal a decision by the ICANN board. And the lack of an appeal process is not the only concern regarding ICANN’s accountability.

ICANN lacks the sort of checks and balances that are expected of an organization in charge of such an important global resource. When asked to address this issue, ICANN notes that it is accountable to its “community,” but it is the very members of that community who have led the call for meaningful accountability measures within the ICANN process.

Much needed accountability measures range from the simple—ensuring a transparent process for considering community input in the policy development process—to the considerably more challenging—establishing an effective appeals process and check on the ICANN board’s near-unlimited power.

Unfortunately, this is an area in which ICANN has been strangely resistant to change. In 2008, ICANN launched its “Improving Institutional Confidence” initiative to address the issues raised during the midterm review of the JPA. Although this initiative made some good recommendations, progress on accountability—easily the largest single concern raised in the midterm review—fell well short of community expectations. ICANN sought to establish a process in which two-thirds of the ICANN community could call for a reconsideration of a decision by the ICANN board. But under that proposal, the body charged with conducting the “reconsideration” would be the ICANN board itself.

ICANN has resisted the idea of giving any other entity real authority to review and or repeal adverse decisions by its board of directors. The upcoming expiration of the JPA casts these concerns in sharp relief, as it threatens to severely weaken one of the only true accountability mechanisms it has ever known: its relationship with the U.S. government.

Although the Commerce Department has—through three presidential administrations—assiduously avoided meddling in the day-to-day activities of ICANN, it has nonetheless served as an important check on the organization and an important force in guiding its growth.

Through routine reviews of the JPA and its predecessors, the Commerce Department has solicited community input on ICANN’s progress toward its ultimate goal of being an accountable, transparent, representative, and stable manager of the DNS. Through those reviews the Commerce Department has set goals and benchmarks for ICANN and has been a consistent agent of proactive change within the organization.

As an accountability mechanism, the JPA is clearly not ideal. The agreement itself has few teeth, and ICANN’s unique relationship with the U.S. government remains a source of concern globally.

To date, ICANN has offered no viable alternatives to the limited accountability provided by the JPA. There are some hopeful signs that ICANN is getting closer to developing real accountability proposals, but the implementation of such proposals is many months off, at best. ICANN would ideally have time to develop, implement, and test those mechanisms before it terminates the one functional mechanism it currently operates under.

Next steps

After ICANN and the U.S. government announce how they intend to proceed after the JPA expires, the real work will begin. Regardless of what they decide, ICANN will continue to face significant external and internal challenges.

What is critical is that in the ongoing effort to transform and evolve the ICANN process, policymakers not lose sight of those aspects of its structure that have been so effective. The private-sector-led, bottom-up model must be preserved even in the face of international pressure. Meanwhile, ICANN must make good on the process it has begun by addressing the serious concerns regarding accountability and capture.

The history of Internet governance to this point has been marked by thoughtful, effective policymaking that has helped to protect and greatly expand the free and open Internet. At this critical moment in the Internet’s development, we must hope that trend continues.

Jonathan Zuck is president of the Association for Competitive Technology.

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