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.