[AfrICANN-discuss] Europe: Get the US and other countries out of Internet governance

Anne-Rachel Inné annerachel at gmail.com
Tue May 5 16:01:07 SAST 2009

Europe: Get the US and other countries out of Internet governanceThe
previous administration literally put stopgap measures in place to defer the
problem of Internet governance to the next one. And now it's Mr. Obama's
turn.Europe: Get the US and other countries out of Internet governance

The previous administration literally put stopgap measures in place to defer
the problem of Internet governance to the next one. And now it's Mr. Obama's

By Scott M. Fulton, III <http://www.betanews.com/author/smfulton3> |
Published May 4, 2009, 4:06 PM

In the boldest statement yet from European government leaders on the need
for globalization of Internet authority, Commissioner Viviane Reding called
specifically upon President Obama to allow the US' oversight of the world's
domain name authority to lapse after this September, but then to allow the
Internet Corporation for Assigned Names and Numbers to become a fully
privatized entity. Such an entity, the Commissioner said, would be
answerable mainly to the global community of users, represented -- as she
foresees it -- by an international tribunal.

"To continue reaping the benefits of the online world, the Internet must
evolve on a solid and democratic base," stated Comm. Reding in her weekly
address (PDF of full transcript available
"ICANN is a private not-for profit corporation established in California.
Since it was created more than 10 years ago, ICANN has been working under an
agreement with the US Department of Commerce. At the moment, the US
government is the only body exercising some oversight over ICANN. I believe
that the US, so far, done this in a reasonable manner. However, I also
believe that the Clinton administration's decision to progressively
privatize the internet's domain name and addressing system is the right one.
In the long run, it is not defendable that the government department of only
one country has oversight of an Internet function which is used by hundreds
of millions of people in countries all over the world."

The United States' oversight over ICANN is not all that sophisticated. In
fact, its binding document -- the now infamous Memorandum of
Understanding<ttp://www.icann.org/en/general/icann-mou-25nov98.htm> --
was intended to be a roadmap for authority for the world's domain names to
be transitioned away from American control. But the Memorandum never really
set that as a goal or a deadline; since 1997, it just assumed that either
the transition would be complete or the authority could simply be extended.
And the latter has been the case, especially since the US Commerce Dept.
under the Bush Administration steered away from what had been a stated
policy toward full privatization.

The outcry against US government involvement in Internet governance reached
a crescendo in 2005 and again in 2007, when what was being called the first
"independent" review panel into ICANN governance issues rejected the
creation of the .XXX top-level
non child-appropriate content. The company that would have maintained the
TLD, called ICM Registry, alleged that political pressure from the Bush
Administration as well as from then-Australian Prime Minister John Howard
swayed ICANN board members from what might otherwise have been a reasoned
opinion on the subject, and provoked ICANN Chairman Dr. Paul Twomey to

This last January, ICM Registry sued ICANN, claiming that by condemning the
.XXX top-level domain but allowing others such as .MOBI to persist, it
violated its own bylaws by failing to judge its petition in an equitable
manner and with respect to fair competition; as well as the terms of the
Memorandum (one of the few there are). In it, it says that ICANN, the US
Dept. of Commerce, and participating parties agree "that the mechanisms,
methods, and procedures developed under the DNS Project will ensure that
private-sector technical management of the DNS shall not apply standards,
policies, procedures or practices inequitably or single out any particular
party for disparate treatment unless justified by substantial and reasonable
cause and will ensure sufficient appeal procedures for adversely affected
members of the Internet community."

ICM Registry's January lawsuit reads, "In rejecting ICM's application,
ICANN's Board cited reasons -- never before discussed in its RFP as factors
to be considered in the evaluation of proposals -- such as 'public policy
issues,' the GAC's concern for 'offensive content,' 'law enforcement
compliance issues,' and the possibility that 'ICANN would be forced to
assume an ongoing management and oversight role regarding Internet content.'
>From a process-perspective, ICANN could not fairly have rejected ICM's
registry agreement based on these reasons, as they were not mentioned in
ICANN's RFP. With respect to public policy for instance, there was no stated
public policy regarding Internet content in place at the time that ICM
applied for the .XXX sTLD. Yet 'public policy issues' was cited as one of
the reasons for denying ICM's proposed registry agreement. In order for this
to have been procedurally fair, there should have been a policy addressing
ICANN's concerns in place from the outset."

But over the years, hesitation to let the memorandum lapse and take ICANN
fully private have centered around what exactly will fill the void left by
the US' exit? Patiently waiting in the wings has been the International
Telecommunications Union, which has been unwaveringly critical of the US'
role in ICANN over the years. Supporters say the ITU takes a modern approach
to the topic of intellectual property; while opponents point to the fact
that it's a United Nations organization, and that it already suffers from
what even members perceive to be a 20th century governance structure of its
own, which hasn't even evolved to a post-Cold War mentality over the true
weights and measures of nations in the modern economy.

In her speech this morning -- timed just before an important meeting on the
subject of Internet governance in Brussels -- Comm. Reding suggested that
disputes over domain name-related matters be resolved not in California
courts, but instead by an international tribunal. But bigger matters such as
whether to create and maintain an .XXX domain should be decided, she
suggested, by a completely new global governing body devoted exclusively to
the task: "To be geographically balanced, this 'G-12 for Internet
Governance' should include two representatives from each North America,
South America, Europe and Africa, three representatives from Asia and
Australia, as well as the Chairman of ICANN as a non-voting member.
International organizations with competences in this field could be given
observer status."

But there's another body of thought entirely that suggests that the problem
with ICANN lies*solely* with ICANN, and that it may only be able to
effectuate necessary changes to its own structure so long as the Memorandum
with the US is extended for at least one more go-round. Last March, a white
paper from the Technology Policy Institute (PDF available
agreed with critics that ICANN is effectively another government subsidized
monopoly, but it warned against letting any other government get a handle on
reshaping that organization while it's still a monopoly, lest it simply
transfer control of the monopoly to a proprietary source.

"Subjecting ICANN (in either its current form or in a private for-profit
form) to governmental regulation raises the questions of which government(s)
(the United States? another country? a consortium of countries?) should
regulate it and what the principles of that regulation should be, as well as
raising a set of well-known problems concerning the distortions that
regulation can induce," the white paper said, "Reconstituting ICANN as a
governmental agency again raises the question of which government and the
related questions of governmental inefficiencies and political influence;
and reconstituting ICANN as an international agency -- perhaps as part of
the United Nations, such as the International Telecommunications Union (ITU)
or the Universal Postal Union (UPU) -- raises similar questions of
inefficiencies, sluggishness, and political influence."

As for an ultimate solution to this debacle, Comm. Reding sliced the ball
smartly into the court of the man now considered the world's singular
problem solver:

"I trust that President Obama will have the courage, the wisdom and the
respect for the global nature of the internet to pave the way in September
for a new, more accountable, more transparent, more democratic and more
multilateral form of Internet Governance. The time to act is now. And Europe
will be ready to support President Obama in his efforts."
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