It's Congress vs. ICANN in the battle for Internet authority

The current three-year working arrangement between the US Dept. of Commerce and the institution that maintains the Internet's top-level domain structure, the Internet Corporation for Assigned Names and Numbers (ICANN), expires at the end of this September. With the Internet being perceived as more of an international platform than an American one, support is growing among overseas legislators including the European Commission for the US Government to let lapse the term of its oversight role, and let ICANN be answerable to an international agency.

In very clear, and perhaps not-so-diplomatically phrased, statement last June, new ICANN CEO Rod Beckstrom voiced his support for such a move. Although ICANN's partnerships with the DoC and private firm VeriSign were instrumental in moving past square one on a project to sign and secure the Internet's root zone addresses, Beckstrom said such partnerships could continue anyway if ICANN were answerable to an oversight board made up of its multitude of international stakeholders.

"We need accountability from the community, ISPs, and the media," Beckstrom is quoted as saying, "not from some outside aloof business or governments."

But leaders in the US Congress are leveraging that very partnership for root zone security as their reason for urging the Commerce Dept. to work out a permanent memorandum of understanding with ICANN, which would effectively cement the Dept.'s current role and leave other countries out of the mix. In a letter yesterday to Commerce Secretary Gary Locke, ten prominent Democrats on the House Energy and Commerce Committee, including Chairman Henry Waxman (D - Calif.) and Telecommunications and the Internet Subcommittee Chairman Rick Boucher (D - Va.), urged the Secretary to draft a permanent memorandum, and hold Beckstrom and ICANN responsible for living up to its terms.

"There is a broad consensus among members that the substantive ties between ICANN and the Commerce Department should be continued," the congresspersons' letter reads. "Rather than replacing the [three-year Joint Project Agreement] with additional JPAs or Memoranda of Understanding that expire every few years, we believe the time has come for a permanent instrument to which ICANN and the Department of Commerce are co-signatories. This statement of commitments and principles would ensure that ICANN remains perpetually accountable to the public and to all of its global stakeholders."

The administration of the new system of global top-level domains (gTLDs) would be set up under this new "permanent instrument," the letter goes on to urge; and the not-for-profit corporation under which ICANN currently does business would remain headquartered in the US.

In Congressional hearings on the oversight matter last June led by Rep. Boucher, he opened by tossing on the table for debate the matter of the US government's contract with ICANN to produce the system that secures the root zone -- a very necessary security measure, especially in the wake of the recent "spoofing" hole discovered and patched in the Internet's DNS.

"It should be noted that under a separate contract which is not scheduled to expire, the Department of Commerce has conferred upon ICANN the management of the master files of the domain name system generally know as the root zone files. Under that non-expiring contract, ICANN also manages and coordinates the allocation of IP addresses," Boucher said. "In considering whether the expiring contract should be renewed or should expire without renewal, key questions are whether ICANN's decision making is sufficiently transparent or whether improvements are needed and whether under its existing structure and practices ICANN is sufficiently accountable to Internet stakeholders and the global community of Internet users."

While Boucher's opening statements sounded diplomatic enough, his questioning of ICANN's then-CEO, Dr. Paul Twomey, sounded more like an excoriation. At one point, Rep. Boucher appeared to accuse Dr. Twomey of enabling regulation over TLDs to become so loose that cybersquatting had grown rampant.

But Dr. Twomey held his own, at one point suggesting to the Subcommittee that if the US continues to place its stamp on the instrument of ICANN's oversight, other countries may sign out of the gTLD plan, perhaps creating their own interoperable, though separate, domain name systems. "Any new [JPA-like] instrument, even if temporary, will throw into question the public-private partnership and the government's confidence in it," Dr. Twomey is quoted as saying.

That suggestion may only have given members of Congress more fuel for their fire, as Reps. Boucher's and Waxman's letter to the DoC now suggests that the only way to maintain a single authority over the Internet, preventing other nations from creating splinter groups, is to place the DoC in permanent authoritative control. "A permanent instrument stating commitments and principles by both parties will place beyond doubt the value of the current model for managing the DNS devised by the Commerce Department and implemented by ICANN," their letter reads, "which has proven to be stable and has prevented control by any one entity of these critical functions."

One aspect of Internet governance the letter does not touch upon is the resolution of disputes. Today, one grievance many international members have is the fact that disputes that make their way to court must now be settled in and by the State of California, where ICANN is officially headquartered -- which not even California is particularly proud of. A "G-12" committee overseeing ICANN, as supported by European Commissioner Viviane Reding, could conceivably enable disputes to be settled in the stakeholder's country of origin. But while that may appear more convenient for stakeholders, the plurality of binding legalities could create new procedural tangles for the agency, which new CEO Beckstrom has acknowledged is already too complex.

The job Rod Beckstrom left to run ICANN was the leadership of the US National Cybersecurity Center, perhaps narrowly avoiding a candidacy for the "cybersecurity czar" post that now Melissa Hathaway no longer wants.