Commerce Department: “Foreign devils made us do it”

The slowly dawning knowledge that the US Commerce Department's NTIA has been
pushing to give national governments more power over ICANN has generated cognitive dissonance in this country. Isn't this supposed to be the land of Internet freedom, not the land of intergovernmental control? Wasn’t it the Commerce Department who created a private sector governance
agency in the first place? The NTIA is now compounding the confusion by claiming that
its newly aggressive stance toward ICANN is an attempt to stave off a takeover by the UN or some other
intergovernmental conspiracy. We
are told that there are “increasing pressures on ICANN” from foreign powers, and that a strengthened GAC is the only way to appease them. This meme was planted in the mind of a Washington Post reporter, new
to the ICANN beat,
and has spread from there to a columnist for Time Magazine.

But the NTIA's argument is completely bogus. There are no “increasing
pressures” on ICANN from other countries. The pressures have, in fact,
dramatically subsided in the past five years. The pressure is made in the USA.

Let's examine first the so-called “threat” of foreign takeover. Depending on how one counts,
there have been three or four attempts by external entities to pre-empt or “take over” the functions
now performed by ICANN, dating back to 1995. Each one has failed and in each case they failed
because the U.S. didn’t want them to succeed. Since 2005, each threat has
become progressively weaker, even as ICANN’s size, budget and staff have grown
and its presence has become more entrenched.

Back in 1996, the International Telecommunication Union (ITU),
an intergovernmental organization based in Geneva, had the support of the
Internet Society and Internet pioneer Jon Postel when it first made an attempt to grab what are now ICANN’s responsibilities. That effort, known as IAHC, failed because the U.S. said no. The newly formed ICANN was indeed
very weak and shaky from 2000-2002, but that was because it has no money and could not get the cooperation
and support of VeriSign, the dominant company in domain name registrations. ICANN
overcame that threat by recognizing VeriSign’s property right over .com and
allowing it to raise rates, creating a powerful symbiosis. The World Summit on
the Information Society, which occurred from 2002 – 2005, mounted the biggest
and most coordinated international challenge to ICANN so far.  But even that failed to put a dent in ICANN’s
private sector nature, both because there was no clearly superior alternative
and because the US didn’t let it. Last year the ITU, at its quadrennial
Plenipotentiary conference, made a last-ditch attempt to raise the issue of
intergovernmental control of critical Internet resources. That effort led to nothing
but an ITU pledge to work with ICANN and the first written recognition of ICANN’s
existence in the ITU’s official documents. 

Moving beyond smallish matters of Internet governance, where
on earth did anyone get the idea that the US is helpless unless desperate measures are taken to
appease foreigners? The US has no trouble resisting UN takeovers
of anything it doesn’t want taken over. It provides a goodly portion of the UN
budget, and when agencies such as UNESCO are perceived to threaten US interests
that money goes away, fast. The US has no trouble vetoing UN votes even when they involve
resolutions with the support of virtually every other government in the world. The US entered the war in Iraq against
the strenuous opposition of most of the world’s states, including longtime
allies such as Germany and France. The idea that an institutional creature strongly
supported by the US will somehow be yanked involuntarily into the UN's orbit is
just ridiculous.

Even if you think the world’s governments are itching to
take over ICANN, there is no plausible mechanism for them to do it, unless the
U.S. government and the big players in the Internet industry want them to. I
challenge anyone with substantive knowledge of international law and institutions
to set out a plausible scenario by which ICANN and the IANA contract could be forced into the UN or
some other intergovernmental arrangement without the consent and support of the U.S.

The Commerce Department ploy persists nevertheless. It is a classic gambit: governments build support for their actions by playing up the fear of an external enemy. It plays
on mental models that are deeply ingrained in most Americans. The
USA is assumed to be the beacon of freedom. The rest of the world can be
divided into either distasteful authoritarian states or mushy socialist
democracies, and either of them (in this mindset) would regulate the Internet to
death if given the chance. So if there’s any threat to Internet freedom lurking
in the world, it must come from someone else, not us. To business people
especially, it is literally inconceivable that the most powerful threats to the
Internet’s freedom might come from their own government.

Unfortunately, it does. While the US does have some of the
world’s most liberal institutions, it also has the largest and most powerful government
and military-industrial complex in the world. The only government that has ever threatened to blow up
ICANN because of a controversial top level domain is – you guessed it – the US
government (.xxx). The US and China are the only governments in the world I
know of to declare that cyberspace is a “national asset.” But when China says
that, they mean a bordered, territorial Chinese Internet; when the savants in Congress and Washington think tanks say that, they mean the whole bloody thing.  We have the greatest capacity for online surveillance
and cyberwar of any nation on earth. We have unmatched levels of control over
and visibility into international financial flows that can be leveraged to
control lots of things outside our borders, including the Internet. Just ask
Wikileaks. As the host to the world’s most powerful multinational copyright and
trademark holders, we are the most susceptible to regulating the entire internet
– not just our part of it – on behalf of intellectual property rights
protection.

It is the US and the US alone that has the capability of exerting more control globally than any of its rivals, given current conditions. You don’t
need to believe the US is evil to appreciate this point; just think of what
happens when an elephant dances among chickens; no matter how nice its
intentions are, any misstep it makes can have fatal consequences.

The point
I am making is that the Commerce Department spinmeisters are not telling
the truth when they claim that their strenuous attempts to subordinate ICANN’s nongovernmental
policy making processes are justified by some desperate attempt to stave off foreign
barbarians. NTIA is doing what it is doing because there are strong economic
and political forces right here in this country who want it to yank the tether.

Journalists, advocacy groups, and citizens should not be fooled by claims of foreign pressures. When discussing U.S. policy with U.S. policy
makers we need to ask tough, pointed questions about who in this country gains from the policies being sought by the
Commerce Department. Ask them which constituencies in this country (including
government agencies such as DoD and NSA as well as businesses) asked for which policies and why they
think bringing ICANN under the control of a governmental
committee led by the US Commerce Department would benefit them. Ask them about the interagency meetings and task forces that vet their policy choices, who is represented on them and what they discuss. And don't buy it when the deflect responsibility to unnamed foreign entities.