Europe: Get the US and other countries out of Internet governance

In the boldest statement yet from European government leaders on the need for globalization of Internet authority, Commissioner Viviane Reding called specifically upon President Obama to allow the US' oversight of the world's domain name authority to lapse after this September, but then to allow the Internet Corporation for Assigned Names and Numbers to become a fully privatized entity. Such an entity, the Commissioner said, would be answerable mainly to the global community of users, represented -- as she foresees it -- by an international tribunal.

"To continue reaping the benefits of the online world, the Internet must evolve on a solid and democratic base," stated Comm. Reding in her weekly address (PDF of full transcript available here). "ICANN is a private not-for profit corporation established in California. Since it was created more than 10 years ago, ICANN has been working under an agreement with the US Department of Commerce. At the moment, the US government is the only body exercising some oversight over ICANN. I believe that the US, so far, done this in a reasonable manner. However, I also believe that the Clinton administration's decision to progressively privatize the internet's domain name and addressing system is the right one. In the long run, it is not defendable that the government department of only one country has oversight of an Internet function which is used by hundreds of millions of people in countries all over the world."

The United States' oversight over ICANN is not all that sophisticated. In fact, its binding document -- the now infamous Memorandum of Understanding -- was intended to be a roadmap for authority for the world's domain names to be transitioned away from American control. But the Memorandum never really set that as a goal or a deadline; since 1997, it just assumed that either the transition would be complete or the authority could simply be extended. And the latter has been the case, especially since the US Commerce Dept. under the Bush Administration steered away from what had been a stated policy toward full privatization.

The outcry against US government involvement in Internet governance reached a crescendo in 2005 and again in 2007, when what was being called the first "independent" review panel into ICANN governance issues rejected the creation of the .XXX top-level domain for non child-appropriate content. The company that would have maintained the TLD, called ICM Registry, alleged that political pressure from the Bush Administration as well as from then-Australian Prime Minister John Howard swayed ICANN board members from what might otherwise have been a reasoned opinion on the subject, and provoked ICANN Chairman Dr. Paul Twomey to abstain.

This last January, ICM Registry sued ICANN, claiming that by condemning the .XXX top-level domain but allowing others such as .MOBI to persist, it violated its own bylaws by failing to judge its petition in an equitable manner and with respect to fair competition; as well as the terms of the Memorandum (one of the few there are). In it, it says that ICANN, the US Dept. of Commerce, and participating parties agree "that the mechanisms, methods, and procedures developed under the DNS Project will ensure that private-sector technical management of the DNS shall not apply standards, policies, procedures or practices inequitably or single out any particular party for disparate treatment unless justified by substantial and reasonable cause and will ensure sufficient appeal procedures for adversely affected members of the Internet community."

ICM Registry's January lawsuit reads, "In rejecting ICM's application, ICANN's Board cited reasons -- never before discussed in its RFP as factors to be considered in the evaluation of proposals -- such as 'public policy issues,' the GAC's concern for 'offensive content,' 'law enforcement compliance issues,' and the possibility that 'ICANN would be forced to assume an ongoing management and oversight role regarding Internet content.' From a process-perspective, ICANN could not fairly have rejected ICM's registry agreement based on these reasons, as they were not mentioned in ICANN's RFP. With respect to public policy for instance, there was no stated public policy regarding Internet content in place at the time that ICM applied for the .XXX sTLD. Yet 'public policy issues' was cited as one of the reasons for denying ICM's proposed registry agreement. In order for this to have been procedurally fair, there should have been a policy addressing ICANN's concerns in place from the outset."

But over the years, hesitation to let the memorandum lapse and take ICANN fully private have centered around what exactly will fill the void left by the US' exit? Patiently waiting in the wings has been the International Telecommunications Union, which has been unwaveringly critical of the US' role in ICANN over the years. Supporters say the ITU takes a modern approach to the topic of intellectual property; while opponents point to the fact that it's a United Nations organization, and that it already suffers from what even members perceive to be a 20th century governance structure of its own, which hasn't even evolved to a post-Cold War mentality over the true weights and measures of nations in the modern economy.

In her speech this morning -- timed just before an important meeting on the subject of Internet governance in Brussels -- Comm. Reding suggested that disputes over domain name-related matters be resolved not in California courts, but instead by an international tribunal. But bigger matters such as whether to create and maintain an .XXX domain should be decided, she suggested, by a completely new global governing body devoted exclusively to the task: "To be geographically balanced, this 'G-12 for Internet Governance' should include two representatives from each North America, South America, Europe and Africa, three representatives from Asia and Australia, as well as the Chairman of ICANN as a non-voting member. International organizations with competences in this field could be given observer status."

But there's another body of thought entirely that suggests that the problem with ICANN lies solely with ICANN, and that it may only be able to effectuate necessary changes to its own structure so long as the Memorandum with the US is extended for at least one more go-round. Last March, a white paper from the Technology Policy Institute (PDF available here) agreed with critics that ICANN is effectively another government subsidized monopoly, but it warned against letting any other government get a handle on reshaping that organization while it's still a monopoly, lest it simply transfer control of the monopoly to a proprietary source.

"Subjecting ICANN (in either its current form or in a private for-profit form) to governmental regulation raises the questions of which government(s) (the United States? another country? a consortium of countries?) should regulate it and what the principles of that regulation should be, as well as raising a set of well-known problems concerning the distortions that regulation can induce," the white paper said, "Reconstituting ICANN as a governmental agency again raises the question of which government and the related questions of governmental inefficiencies and political influence; and reconstituting ICANN as an international agency -- perhaps as part of the United Nations, such as the International Telecommunications Union (ITU) or the Universal Postal Union (UPU) -- raises similar questions of inefficiencies, sluggishness, and political influence."

As for an ultimate solution to this debacle, Comm. Reding sliced the ball smartly into the court of the man now considered the world's singular problem solver:

"I trust that President Obama will have the courage, the wisdom and the respect for the global nature of the internet to pave the way in September for a new, more accountable, more transparent, more democratic and more multilateral form of Internet Governance. The time to act is now. And Europe will be ready to support President Obama in his efforts."

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