US Drops ICANN/DNS Bombshell (on WSIS?)

The US Department of Commerce has announced an unexpected new policy regarding the Domain Name System (DNS) and the Internet Corporation for Assigned Names and Numbers (ICANN).

In previous pronouncements, the US had indicated that the US would someday release its ultimate control over the “root” — the file that contains the master list of authorized registries and thus determines which TLDs show up on the consensus Internet and who shall have the valuable right to sell names in them. That day would come if and when ICANN fulfilled a number of conditions spelled out in a Memorandum of Understanding (MOU).

Today’s announcement says the opposite: the US plans to keep control of the root indefinitely, thus freezing the status quo. Nothing will change immediately as a result. But the timing is weird, coming as it does only a short time before the forthcoming meeting of the UN-sponsored World Summit on the Information Society (WSIS).

Five years ago, in Wrong Turn in Cyberspace, I wrote (footnote 42, reformatted slightly):

Whether and under what circumstances DoC would turn over the root to ICANN has been the subject of somewhat contradictory pronouncements. In the White Paper, DoC stated, “The U.S. Government would prefer that this transition be complete before the year 2000. To the extent that the new corporation is established and operationally stable, September 30, 2000 is intended to be, and remains, an ‘outside’ date.'” White Paper, supra note 15, at 31,744. More recently, DoC assured Congress that it intends to retain its rights over the DNS:

The Department of Commerce has no intention of transferring control over the root system to ICANN at this time [July 8, 1999]. . . . If and when the Department of Commerce transfers operational responsibility for the authoritative root server for the root server system to ICANN, an [sic] separate contract would be required to obligate ICANN to operate the authoritative root under the direction of the United States government.

Letter from Andrew J. Pincus, DoC General Counsel, to Rep. Tom Bliley, Chairman, United States House Committee on Commerce (July 8, 1999), National Telecommunications and Information Administration.

Meanwhile, or at best slightly later, DoC apparently assured the European Union that it intends to give ICANN full control over the DNS by October 2000:

[T]he U.S. Department of Commerce has repeatedly reassured the Commission that it is still their intention to withdraw from the control of these Internet infrastructure functions and complete the transfer to ICANN by October 2000. . . . The Commission has confirmed to the US authorities that these remaining powers retained by the United States DoC regarding ICANN should be effectively divested, as foreseen in the US White Paper.

Commission of the European Communities, Communication from the Commission to the Council and the European Parliament: The Organization and Management of the Internet International and European Policy Issues 1998-2000, at 14 (Apr. 7, 2000) (emphasis added), Information Society Promotion Office. Recently, DoC assured the GAO that “it has no current plans to transfer policy authority for the authoritative root server to ICANN, nor has it developed a scenario or set of circumstances under which such control would be transferred.” GAO Report, supra note 28, at 30. ICANN meanwhile stated on June 30, 2000, that “[s]ince it appears that all of the continuing tasks under the joint project may not be completed by the current termination date of the MOU, the MOU should be extended until all the conditions required to complete full transition to ICANN are accomplished.” Second Status Report Under ICANN/US Government Memorandum of Understanding (30 June 2000), § D.4, (June 30, 2000).

Since then, every time the MOU with ICANN has lapsed, the US has observed that the terms were not met — but extended the agreement. And every time, ICANN has said that it’s just about to meet all the necessary conditions any day now…although it never does. And in fact, ICANN has come closer and closer, although one or two major, perhaps insurmountable, obstacles remain (agreements with the root server operators and especially agreement with the ccTLD operators).

Thus, the ambiguity remained. Most recently, in fact, Commerce had sent signals suggesting it was leaning in ICANN’s favor, notably an announcement that the current MOU extension would be the last one — leading me and other observers to think the fix was in for turning ICANN loose.

But today, in a surprise statement by the Commerce Department, the US government took out the ambiguity — and said it intended to keep its authority over the root. In the short and medium term, the implications of this statement are political, not operational as the status quo for operations remains unchanged.

The new policy states that the US no longer has any intention of handing the root to ICANN even it meets the terms of the MOU (as amended):

U.S. Principles on
the Internet’s Domain Name and Addressing System
The United States Government intends to
preserve the security and stability of the Internet’s Domain Name and
Addressing System (DNS). Given the Internet’s importance to the world’s
economy, it is essential that the underlying DNS of the Internet remain stable
and secure. As such, the United States is committed to taking no action that
would have the potential to adversely impact the effective and efficient
operation of the DNS and will therefore maintain its historic role in
authorizing changes or modifications to the authoritative root zone file.

Governments have legitimate interest in the management of
their country code top level domains (ccTLD). The United States recognizes
that governments have legitimate public policy and sovereignty concerns with
respect to the management of their ccTLD. As such, the United States is
committed to working with the international community to address these concerns,
bearing in mind the fundamental need to ensure stability and security of the
Internet’s DNS.

ICANN is the appropriate technical manager of the
Internet DNS. The United States continues to support the ongoing work of
ICANN as the technical manager of the DNS and related technical operations and
recognizes the progress it has made to date. The United States will continue
to provide oversight so that ICANN maintains its focus and meets its core
technical mission.

Dialogue related to Internet governance should continue
in relevant multiple fora. Given the breadth of topics potentially
encompassed under the rubric of Internet governance there is no one venue to
appropriately address the subject in its entirety. While the United States
recognizes that the current Internet system is working, we encourage an ongoing dialogue with all stakeholders around the world in the various fora as a way to facilitate discussion and to advance our shared interest in the ongoing
robustness and dynamism of the Internet. In these fora, the United States will continue to support market-based approaches and private sector leadership in Internet development broadly.

This new statement is consistent with some of what Commerce has said to Congress in the past, but it is not consistent with much of what the US has been telling its allies. Some of them are going to be very upset with this change in policy.

Personally, I’m actually not that upset with this promise to maintain the status quo because I don’t see ICANN as deserving to slip loose of the last significant source of even potential control on its ever-expanding budget and activities. And, although it’s not politically correct in international circles to say so, I’d be uncomfortable with any international control over the Internet that gave any foreign despot a say in how domestic communications work. (I’d be fine with a coalition of the willing serving as co-trustees if membership were limited to democracies; for some reason that’s never what anyone contemplates.)

But the timing of this announcement seems odd — even Bolton-eseque — as it comes so soon before WSIS, and may be experienced as a stick in the eye by some of the governments there. Is it an attempt to dissuade participation in WSIS on the grounds that it will be pointless? An attempt to lower expectations? Or just ham-handed?

The bright side from the point of view of potentially angry foreign governments is the invitation to thinking about new ways to deal with ccTLD issues; coupled with the reference to multiple fora, this suggests a possible deal on taking the ccTLD part out of ICANN and situating it somewhere else. But that’s pure speculation on my part.

Updates: Henry Farrell suggests that the ccTLD part is just a sop: “This is very small beer; country level domain names aren’t that important.”

Also, I just came upon this remarkably defensive interview with ICANN CEO Paul Twomey, held before this announcement (but did he know?) in which he asserts that ICANN’s future is not in danger, and denied rumors that the EU’s Paul Verhoef, who had been ICANN’s Vice-President, quit suddenly (did he know?) because Verhoef was frustrated with ICANN and/or because the EU is lessening its support.

Update2: According to someone who should know, the job Verhoef left ICANN for is one that anyone in their right mind would prefer, so one should not read anything into that move.