US government steps back from internet control

Original URL: https://www.theregister.com/2006/10/02/icann_doc_jta/

But very slowly

Posted in Legal, 2nd October 2006 10:40 GMT

Analysis The US government has taken a step back from control of the internet with a new contract between it and overseeing organisation ICANN that came into effect yesterday.

The three-year contract, with an apparently significant halfway review point, has been heralded by both ICANN and the Department of Commerce as a sign that the US government has listened to worldwide criticism of its continued oversight role and has responded by providing ICANN with a new degree of autonomy.

However, experts disagree, with one calling it "old wine in a new bottle", and another barely concealing his frustration with an administration that promised eight years ago it would end its role but now has decided "we will have to wait another three years, at a minimum".

There are some significant changes in the new contract, reflected in a new name for it: it is no longer a "memorandum of understanding" but a "joint project agreement". The US government has pulled out its prescribed list of actions that ICANN has to meet before it is given autonomy - something that has been continually refreshed since 1998 and was universally criticised as a compliance merry-go-round.

Instead, the requirements that ICANN needs to achieve before being granted freedom come in the form of an "Affirmation of Responsibilities" that was approved by the ICANN board. This list was produced by the US government and handed to the ICANN board for approval.

Most controversially, it includes the blinkered approach to "whois" data that US organisations have lobbied so hard in Washington for, but which the wider internet community disagrees with. But the shift in emphasis is nonetheless significant. ICANN says: "ICANN will no longer have its work prescribed for it. How it works and what it works on is up to ICANN and its community to devise."

Meeting people is easy

Another important change is the fact that ICANN will no longer be required to report direct to the US government every six months. Instead, it will produce an annual report for the internet community as a whole. ICANN is also upbeat about the fact that "there is no requirement to report regularly to the DoC. The DoC will simply meet with senior ICANN staff from time to time."

But as commentators have been quick to point out, it is precisely this frequent interaction with ICANN staff that enabled the Bush Administration to interfere with approval of the .xxx domain - something that led to rare public condemnation by the EU of a "clear case of political interference".

The JTA's exact wording is that "the Department [DoC] will hold regular meetings with ICANN senior management and leadership to assess progress".

As one expert, EC civil servant Patrick Vande Walle, has noted: "The DoC will be meeting ICANN staff, not the ICANN board. It is quite obvious it is easier for an American administration to put pressure on mostly American staff, rather than on a board made of mostly non-Americans."

US academic and internet governance expert Milton Mueller is equally damning: "The basic relationship between the US government and ICANN is fundamentally unchanged. ICANN still gets general policy guidance from the DoC, and still regularly reports to it."

Despite these words, however, there is a real sense within ICANN itself that the new contract represents a big chance and opportunity to finally become what its originators had envisaged.

ICANN CEO Paul Twomey said the deal was "a great achievement for the ICANN community. Our community is made up of very committed, highly skilled individuals most of whom are volunteers and take their responsibilities very seriously. This result is a tribute to their efforts".

More succinctly, he has argued that the DoC is now "walking the talk".

Likewise, ICANN corporate affairs head Paul Levins pointed out that commerce secretary John Kneuer said that the agreement was "putting ICANN on the path to autonomy". Levins sees the 18 month review as a real opportunity - if the ICANN community can come to agreement. That, he points out, is "the last hurdle".

The reality

Amid all the detail, claims, and small-print, however, it can be easy to lose the bigger picture. And that is: the US government has purposefully failed to offer anything but the wooliest assurance that it will step away from control of the internet.

Despite constant (and successful) efforts to paint the situation differently within its own borders, the reality is that the US government has faced a barrage of criticism from all sectors across the world for its continued control and occasional interference in the working of the internet's technical functions. Its response has been to give back the bare minimum it can get away with, with weak assurances that can be swiftly recalled at any point in the future with a simple speech by the commerce secretary.

Despite this, there are real signs that ICANN is making the most of its opportunity. The organisation recently published an independent report into one of its main decision-making constituents that was highly critical of the cliché that exists within it. It has also allowed its Ombudsman to start making public his reports to the board. It has embarked on a redesign of its website to make information more accessible. And board members themselves assure anyone that asks that they're are working toward a more open system.

But ICANN has spent so much time living in the shadow of the DoC that it has adopted the same approach of assurances without promises. ICANN board member Susan Crawford claims she has asked "many times" for a clarifying amendment to ICANN's bylaws that would state whether an ICANN board decision takes precedence over a DoC stance. She has never got that agreement because ICANN and the DoC prefer to keep the exact mechanics of their interaction as opaque as possible.

Accountability and transparency

Likewise, the universal criticism that ICANN is neither transparent nor accountable enough has led to "transparency" and "accountability" being the second and third items in its new "affirmation of responsibilities".

Yet, ICANN continues to insist that the issue is one of accessibility of information rather than any actual problems with transparency. When asked to provide examples of how precisely ICANN will tackle the problem, it continues to offer no more than vague notions of consultation with the internet community.

As with the DoC, ICANN has to be boxed in and repeatedly criticised on the same point before it will make any effort to change a system that benefits it.

The same is true for the appeals process within ICANN. The argument put forward by CEO Twomey is that the independent review process of ICANN decisions is there but has never been used. Instead, Twomey argues, organisations have chosen to go to the law courts.

While it is certainly correct that ICANN has had to face countless lawsuits where arbitration would have been more likely used in a country other than the US, ICANN's claim to have an open and simple review process is palpably untrue.

Freelance journalist Edward Hasbrouck has been fighting with ICANN for nearly two years to have his review request processed, and has been purposefully blocked, stymied, and ignored every step of the way. Hasbrouck reportedly dominated a press conference over the new DoC contract, asking for a response to his requests for further information on the independent review process. It is unclear whether he will receive it.

The uncomfortable truth

But amid the uncomfortable truths surrounding ICANN and the issue of internet governance there is one that goes unsaid but which will soon have the spotlight shone on it: the interaction of the internet community itself.

ICANN-bashing is a popular pasttime, but with even the most fervent critics accepting that the organisation is here to stay, an equally big change of heart by the net community is required in its interaction with ICANN. Weak promises and woolly assurances aside, the autonomy of the internet's overseeing organisation is now as much in the internet community's hands as it is the US government's.

As one United Nations official remarked at the recent World Summit in Tunisia, where ICANN won its future: "The solution is not to find a way of making people happy, it is to come up with a compromise that everyone dislikes in equal measure."