On August 4 the U.S. House Committee that oversees the Commerce Department published their opinion about ICANN and the impending expiration of its Joint Project Agreement (JPA) with the Commerce Department. The gist of the letter was that the Congressional committee, headed by powerful Democrat Henry Waxman of California, wants something like the JPA to become a permanent part of the global Internet.
The letter proposes that a new, “permanent instrument” between the U.S. Commerce Department and ICANN be created. The list of things the instrument should do was strong and sweeping. It not only allows Commerce to periodically review ICANN's performance but also asks it to “create a mechanism for ICANN's implementation of any new gTLDs and internationalized domain names that ensures appropriate consultation with stakeholders.” It would ensure that ICANN will not change its current policy toward indiscriminate access to Whois information.
In other words, this is a rather explicit call for the basic parameters of DNS policy to be made (or rather, re-made) in Washington. In IGP's recent comments on the JPA, we, too, called for a more permanent agreement. But we wanted that agreement to put into place lasting accountability structures and basic principles, such as freedom of expression. And we proposed to make ICANN more global and less dominated by one country. The Congress is asking for the new “instrument” to establish the details of very immediate DNS policy issues, and it wants to exacerbate the U.S. unilateralism that has already caused so much trouble.
Why? What reason was put forward to justify this rather stark departure from the basic model of ICANN, which was supposed to be an independent, multistakeholder global governance agency, accountable to all the world's Internet users and not just those located in the U.S.?
One has to answer the “why” question in two separate paragraphs. There are the real reasons, which can be read between the lines, and there are the rhetorical reasons explicitly stated in the letter.
Let's start with the rhetoric; it provides some comic relief. According to the letter, the new approach “would ensure that ICANN remains perpetually accountable to the public and to all of its global stakeholders.” Let me run that by you again: an exercise of authority by an unelected Executive branch department of one national government is intended to keep ICANN's little slice of the Internet accountable to the global public. Yeah, right.
Now permit me to explain what is really going on. The tip-off is provided by the two paragraphs which attempt to control or limit concrete policy outcomes – specifically, the ones about implementation of new gTLDs and IDNs, and the Whois service. It is all very simple. The major trademark and copyright firms are unhappy with the prospect of an unlimited number of new top level domains, and (as we have known for years) will do anything to keep domain name registrants' private data in Whois as easily accessible as possible so that they can continue to send automated cease and desist letters and police their marks at your expense. These firms have systematically lobbied Congress (and the Commerce Department) in the past few months, and in this letter Congress has responded by catering to their very short-term political demands.
If you think some international calculus entered into this letter, forget about it. Dismiss any talk you might hear of geopolitics, national security, the U.S. role in the world, its negotiations with the EU, and so on. This is just plain old brain-dead Washington domestic politics at work. If you're European or Latin American or Chinese and find that hard to understand — sorry chump, just deal with it.
The big business lobbyists have pretty much figured out that they are much more likely to get what they want by leveraging their existing U.S. Congressional lobbying capability than by investing time and money in the tedious, slippery and byzantine ICANN process, which, as we have been warning for months, is anything but bottom up or consensual. Sure, working within ICANN they will invest in tilting the playing field against civil society and the individual user, they will work to marginalize the interests of the general public and civil liberties. Even so, they still want to have that final “periodic review,” that ultimate “oversight,” from a business-friendly U.S. government department that will give them the final word. And so while the Congressional letter, and the lobbyists behind it, pay lip service to “accountability” and capitalize on the well-deserved mistrust ICANN has generated on the accountability issue, any one familiar with ICANN politics should know by now that the Commerce Department is just as responsible for its lack of accountability and its departures from bottom up as the ICANN Corporation itself. Commerce has, after all, overseen ICANN for a decade now, and if there are major problems in the way it operates it must share in the blame.
The combination of ICANN's rejection of civil society and its tightening tether to the US Commerce Department delivers a very powerful, knockout blow to the original ideal of globalized self-governance that was responsible for creating ICANN. It seriously undermines all that makes it worth participating in. Public interest groups who already must enter a rather hostile ICANN policy development process that caters to business and governments now can see that all that work and abuse doesn't even matter, because the real decisions will be made in Washington and dictated by a few business lobbyists.