About ten days ago the US Commerce Department sent ICANN a letter slapping it upside the head for suggesting in its “Improving Institutional Confidence” report that the US might actually keep its 1998 promise to turn over root zone file to ICANN/IANA. The substance of the letter was no surprise, although the use of ICANN's public comment period to express it was unusual, as was its confrontational tone.
On August 1, Commerce sent ICANN another letter, warning ICANN that it had better continue to allow unrestricted public access to personal information in the Whois database. Specifically, it made its opposition known to ICANN's proposed legitimation of proxy services that offer registrants some shield against the indiscriminate display of their personal data to anyone in the world who wants it. This letter, too, was part of a public comment period on proposed changes in the Registrar Accreditation Agreement.
The second letter, like the first, is pretty critical and confrontational. Worse, the letter specifically invokes the part of the JPA which says that ICANN must continue to enforce the illegal (in many parts of the world) requirement to publish Whois data. That's pretty astounding, because when the JPA was first published many of us, including ICANN Board members, were alarmed by this order and asked ICANN’s CEO Twomey whether this part of the JPA specifically precluded ICANN’s “bottom up” policy making process from making policy that went in a direction the US Government didn’t like. Twomey emphatically assured us that it only obligated ICANN to enforce existing policy; it did not stop ICANN from changing its policy. This letter calls that into question. It seems to suggest that any formalization of proxy services in the Registrar Accreditation Agreement would contravene the JPA.
The US letter also strongly confirms our perception that the US wants governments to be in charge of ICANN policies rather than business and civil society stakeholders. As happened in Paris in the GAC meeting, the US official stamps her foot on the ground and insists that because the Governmental Advisory Committee asked for something, it must happen. But ICANN's by-laws are very clear on this, the GAC is Advisory not determinative.
However, I see some silver lining in this dark cloud. For one thing, the US is relegated to the role of public commentor rather than silent, powerful insider. Second, the USG letters' increasingly strident tone speaks to me of a kind of desperation: the Bush admin knows that its days are numbered, and it seems to be trying to call in as many chits as possible for the business interests as it can before the electorate turns the page on this disastrous and embarrassing chapter in US history.
But this short-term approach can be self-destructive, because it might actually intimidate ICANN into doing what it wants. And while that would make the mid-level politicos in Commerce happy for a few months, the long-term consequences could be terrible. You just can't create something that you present to the world as a truly international, bottom-up, self-governing, independent institution, and then jerk it around any time it attempts to produce a policy the US government doesn't like. Surely the USG knows that if ICANN is perceived as nothing but its stooge it will lose legitimacy and crumble over the longer term. But there is another, even worse outcome this could lead to. Strengthening of the GAC at the expense of other stakeholder groups could easily backfire in the long term. It is not hard to imagine a future scenario in which an alliance of governments hostile to the US, or to business and civil society generally, becomes dominant in GAC. If such a future GAC had the authority to take over ICANN or order its administration about, the US will have no one but itself to blame.