A subcommittee of the U.S. Congress on Telecommunications and the Internet has expressed opposition to any move by the Commerce Department to alter its unilateral oversight of ICANN. The letter comes in response to growing lobbying, from ICANN and others, regarding the future of Commerce oversight and ICANN's independence. Representative Edward J. Markey, the supposedly liberal Democrat from Massachusetts who chairs the Subcommittee, was joined by rightwing conservative Charles Pickering and 14 other members of the committee in the May 6 statement. The members expressed their opposition to “any change that threatens the important U.S. role in promoting U.S. commercial and free speech principles on the Internet,” and implied that free speech principles would be threatened if NTIA “abandoned” its role “now or in the near future.”
The subcommittee members who drafted and signed this statement are badly misinformed – about ICANN, freedom of expression, NTIA oversight, and global Internet governance. These issues are far too important to be left to political posturing, so we attempt here to set the record straight.
It is important for U.S. policy makers to let go of the idea that U.S. oversight has anything to do with preserving and protecting freedom of expression on the Internet. Commerce has since 1997 repeatedly refused to incorporate freedom of expression as a principle guiding the ICANN regime, despite numerous calls for it to do so in public comment sessions. The earliest of these calls came in 1997, during the drafting of the Green Paper leading to ICANN's creation, when the principles guiding the regime were first being formulated. EFF, the Domain Name Rights Coalition and many individuals asked that free expression be written into ICANN's constitution. The most recent reiteration of this call came in 2006, from the Internet Governance Project during a review of ICANN’s status. In each case, Commerce has either ignored or in some cases explicitly rebuffed these calls for recognition of free speech as a part of ICANN’s mandate.
And so the concept of freedom of expression is conspicuously absent from any of the Memoranda of Understanding, contracts, or agreements that make up the ICANN regime. Commerce has urged ICANN to do many things – protect trademarks, override privacy concerns to provide open access to domain name registrants’ personal identification data, and promote competition – but it has never once urged it to respect, or even pay attention to, freedom of expression.
But Commerce is guilty of more than crimes of omission. The Department’s role in ICANN’s oversight has in at least two cases been actively inimical to freedom of expression. In the latest round of policy formation for new top level domains, the U.S. Commerce Department has found itself on the same side as authoritarian governments in supporting severe regulation of words or concepts that can be used as top level domain names. The “Public Policy Principles” for new top level domains developed by ICANN’s Government Advisory Committee (GAC) has insisted that new gTLDs give governments a blank check to control and veto the use of any country, territory, or place names,” and any “terms with national, cultural, geographic and religious significance.” Those prohibitions would be unconstitutional in the U.S. Yet, following GAC’s lead, ICANN’s policies go even further and give the new TLD process the power to censor all new TLD proposals to make sure that they don’t contain “insensitive” or “offensive” words or violate “standards of morality and public order.” Indeed, in an earlier incarnation the GAC policy principles would have allowed any government in the world to veto a new TLD proposal for any reason. The U.S. delegation did not object to these proposals. And have we forgotten that in 2004-5, under pressure from conservative groups seeking to prevent the world from recognizing the existence of adult content on the Internet, the Commerce Department used its authority over ICANN to reverse an ICANN decision to create a .xxx top level domain to identify such content. Where, oh Congresspersons, are those “free speech principles” you are seeking to protect by perpetuating U.S. oversight of ICANN?
The U.S. Commerce Department is the home of the Patent and Trademark Office, which administers and promotes intellectual property. It works closely with trade policy officials to promote American products and services and to extend copyright and patent protection globally. It deals with spectrum allocation for the federal government. It has no interest in freedom of expression. Commerce, like all U.S. agencies, is subject to the First Amendment and other constitutional constraints. But the ICANN regime can be considered a form of policy laundering designed to minimize or short-circuit those constraints. By delegating Internet resource assignment and policy functions to a private corporation, the applicability of First Amendment constraints to ICANN is by no means clear. Whether an ICANN action that censors expression constitutes private action or state action is murky, and has not been tested in any court. If they truly are concerned about these issues, why aren’t these Congresspeople calling for NTIA to affirm its commitment to free speech principles?
The Markey statement is disappointing in its attempt to exploit nationalist sentiment, for example its professed shock at the idea that ICANN might move its headquarters to some other country. It is easy to pretend as if the threat to Internet freedom comes from “foreigners.” But what if the real threat comes from within? An honest elected representative would recognize at least the possibility of that.
Whatever motivated this statement, it almost certainly was not freedom of expression. And that is what is most damnable about it. Subcommittee members should show more respect for the U.S. Constitution they are sworn to uphold, and refrain from using freedom of expression as a cover for less lofty political and economic concerns. One can only wonder which business interest lobbyists made the investments in legwork and dollars required to get this statement. Was it the trademark and copyright interests worried that a liberated ICANN might make some concession to privacy in Whois? Or registrars steamed over VeriSign’s bargain with ICANN over the regulation of .com? Shadowy national security interests? It could be any one of these or any combination. But it wasn’t anyone concerned about freedom of expression.
In an interesting development, Markey’s letter tries to force the hand of Commerce. It asks the Commerce Department to respond to the following questions by the close of business two weeks from May 6:
“1. Does the Department of Commerce intend to continue its oversight role of ICANN to ensure the stability and security of the core Internet infrastructure?
2. In what way does the Department intend to continue that role?
3. Does the Department intend to ensure that the key facilities of the root server system continue to be housed in the United States?
4. The Chairman of ICANN said in February 2008, at the Department's public meeting, “Among the respondents there were concerns expressed that ICANN will leave the United States and seek broad immunities from legal process by third parties or contracting parties. Let me be loud and clear on this. That will not happen. The U.S. for historic and practical reasons will remain ICANN's headquarters.” How does the Department intend to ensure that ICANN fulfills this commitment? ”
From a Democratic Party point of view, this attempt to force Commerce to declare now whether it will make some change in its oversight arrangements is a really stupid thing to do. It invites one of the most conservative, unilateralist and internationally disrespected Republican administrations in U.S. history to make a commitment that will extend well into the administration of the next President.