The Myth of US Government “Protection” of the Open Internet

Nationalist Republicans who want to retain governmental control of ICANN have based their argument on a false premise. To call it a false premise, in fact, is to be polite. It would be more accurate to call it a rhetorical ploy, what Washington calls “spin.” This “spin” is invisible to most participants in the debate because few of them have the detailed understanding of the IANA functions, ICANN’s history and the facts about the U.S. role required to see through the spin.

The spin was pervasive in the Senate hearings Tuesday, May 24. Rick Manning, testifying for one of the most nationalistic conservative groups, exemplified the spin when he claimed that “no multi-stakeholder system that can be devised will ever be as effective at protecting a free and open Internet as the current United States government oversight system.”

The premise behind Manning’s claim (and it was echoed by Senator Rubio and others) is that the purpose of oversight of ICANN by the U.S. Commerce Department is to protect free speech and the open Internet. US oversight is portrayed as the shield that prevents China, Russia and other authoritarian states from ‘taking over’ the internet.

But this is nonsense; in concocting this spin, the Republicans have invented goals and functions for NTIA oversight of ICANN that have never existed. The claim that the US role is there to protect a free and open Internet is totally disconnected from reality. Here are five reasons why.

The US asserted the power to control changes in the root zone to protect Network Solutions (now Verisign) from antitrust liability, not to protect ICANN from foreign governments or to protect the open Internet.

This is a historical fact. The U.S. had no control over the contents of the DNS root zone file until an October 1998 amendment to the Cooperative Agreement with Network solutions. The agreement was amended to give the US control because of an antitrust lawsuit against Network Solutions from a prospective competitor, Name.Space. Putting responsibility for root zone changes in the hands of the USG immunized NSI from antitrust liability when competitors seeking new top level domain delegations wanted to add their names to the root.

The US Commerce Department explicitly rejected calls to insert free expression protections in ICANN’s founding documents

The potential link between ICANN’s mission and protection of free speech on the Internet was evident from the beginning. In 1997, as ICANN was being formed, various public interest groups begged the Department of Commerce to include free expression protections in ICANN’s charter. The Commerce Department rebuffed these pleas, viewing ICANN as only about e-commerce and not requiring any special protections for free expression. Furthermore, ICANN’s status as a private nonprofit relying on governance by contract exempts it from First Amendment limits. It is not a state actor, therefore the first amendment does not apply. The new transition plan, on the other hand, contains a prohibition on using ICANN’s power over DNS to regulate content.

The US Commerce Department has never used its oversight power to fend off threats to free expression

It is impossible for Republicans, or anyone else for that matter, to provide a single case in which the Commerce Department has intervened in ICANN’s policy development processes or governance activities to avert a threat to freedom of expression.

The US Commerce Department has used its power to create threats to free expression

There are several instances in which the U.S. Commerce Department has intervened in ICANN processes to limit freedom of expression or to use ICANN’s powers to suppress undesirable speech. In the famous .XXX case, religious conservatives (who bear a striking resemblance ideologically to the conservative nationalists now opposing the transition) heavily lobbied the Bush administration to overturn an ICANN board decision authorizing the creation of the .XXX domain devoted to adult content. Under pressure from a conservative political appointee, the Commerce Department caved and pressured the ICANN CEO and board to rescind its decision. It took an Independent Review Process to reverse this decision – freedom was protected by multistakeholder process, not by the US government. And Republican conservatives led the way in pushing for censorship.

But that’s not all. During the new gTLD process, the US Commerce Department sided with authoritarian governments (and indeed, almost all governments) in trying to give the Governmental Advisory Committee an arbitrary veto over any new top level domains they didn’t like. The U.S. explicitly argued against bounding this veto power in any legal limitations, which would give, e.g., the Chinese  the power to veto .HUMANRIGHTS, or the Saudis or any government the power to veto any “sensitive” domain names.

The U.S. has also used its authority over ICANN to empower trademark-maximalist policies that limit the use of names in ways that go beyond standard trademark law.

The US role (before the transition was announced) routinely attracted efforts by other governments to control the root.

The US role is not a shield; it’s a magnet. In international law all sovereigns are supposed to be equal. Unilateral control of a globally shared resource by one government directly contradicts international legal principles regarding sovereignty. Thus putting one government in charge of all root zone changes is bound to arouse demands from other governments to have an equal role, especially when domains located in their own territory are involved. As Steve DelBianco said in the hearings, far from protecting the Internet from the depredations of government, the special U.S. power made ICANN a target of governmental and intergovernmental concern all during WSIS and for 9 years thereafter. The transition is taking the bulls-eye off of IANA.

In conclusion, the framing of the debate by the nationalists completely distorts the debate we should be having. If anyone really believes that the US role protects the open internet, then it may seem puzzling why the U.S. would ever “give up” its control of IANA. But if you understand what the NTIA actually does, and how it has used that power over the years, one will have a much more realistic idea of what is at stake in the transition. We need to get hierarchical government power out of ICANN and live up to our commitment to a regime based on open participation by all of civil society.


6 comments

  1. Michael Froomkin

    I think this may be just a little too strong. The *fact* of the NTIA’s veto may well have headed off lots of speech-limiting things that some governments and some corporations might otherwise have pushed for. It’s no more visible than an NBA shot-blocker’s ability to affect a shorter person’s shot without actually blocking it. Doesn’t show up it the stats, but it has an effect.

    I agree this wasn’t a major policy goal of NTIA, and I agree that they didn’t ever need to say much about it, but I think it was there. We’ll learn how much that mattered in the next decade: will the ICANN of the future be as good as the past one — for all its other faults — at staying away from censorship plans? Could be; I hope so.

    • Milton Mueller

      Too strong? I think your critique is way too weak. You say, “The…NTIA’s veto may well have headed off lots of speech-limiting things that some governments and some corporations might otherwise have pushed for.” May well have? What things were “headed off”? When? You have to provide facts, evidence, to support such an assertion, and you have none. That’s likely because there are none. Insofar as the NTIA/Commerce Department intervened in ICANN it was always to support things governments and corporations pushed for. I would think you could come up with at least one example if you wanted to make this argument.

      On the other hand I provided three distinct, documented examples of US interventions that pushed in the direction of restricted freedom. And I pointed out how the new bylaws do provide a specific prohibition on content regulation.

      One should not allow a justified skepticism about ICANN’s past to be used to prop up nationalism apologies for continued U.S. control.

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  3. Tom Landry

    Will ICANN still be immune from antitrust liability after severing the link with the USG? Like is there anything in the proposed transition that retains they’re immunity? because without the government contract ICANN will have a private monopoly instead of the de jure monopoly they have enjoyed; could they continue to enjoy it?

    • Milton Mueller

      Tom:
      ICANN was never immune from antitrust liability however Verisign was. My understanding is that while the Cooperative Agreement between NTIA and Verisign will be modified to end US government approval of root zone modifications, it will not be modified in a way that eliminates Verisign’s immunity.

  4. Bruno

    Dear Professors Froomkin and Mueller,

    Since in Brazil there is little material regarding the subject (and those that actually exist sound awfully more like “preaching” direct from the current ccTLD .br “canon” than actual in-depth analisys), I have rellied on your workings to better understand internet governance.
    At first, I agree with Prof. Mueller with his skepticism about the how the US government’s best interests and the internet users’ interests can align. However, I also agree with Prof. Froomkin critical look on this “multi-stakeholder” solution, since the Brazillian case, besides being heavily critical of ICANN’s lack of accountability, doesn’t really work hard to be an exemple itself.
    My point is: in looking for the answer to the question “who watches the watchmen”, I still believe I would go for the evil I already know, not for the strange looking beast someone is trying to sell me as a cute, unharmful kitten.