Whois? Whowas. So what's next for ICANN and its vast database of domain-name owners?
Beginning of the end of the US-led internet?
Enter the dragon
Until that is the Edward Snowden revelations of mass surveillance, which so undermined the US government's claim of benign dictator over the global internet that it felt obliged to step aside from its role as ultimate boss of ICANN and hand the global internet community the task of taking over its role as backstop and accountability enforcer.
And the global internet community did a lousy job, giving ICANN a new-found autonomy in return for a series of worthless accountability measures.
Since that handover on September 30, 2016, two things have become clear:
- ICANN continues to make terrible decisions, and
- European governments have decided that they will use their collective power as the EU to force changes on how the internet functions.
The organization has repeatedly been taken to task for its actions through the mechanism that was designed to keep it accountability: an "independent review panel" or IRP.
Yet despite several striking decisions made against ICANN by that panel little or nothing has changed. Among the things that have come out in recent years are: that its own staff repeatedly interfered in independent processes; that it broke its own rules and bylaws to reach a pre-decided conclusion; that it secretly rewrote reports and then lied about it; that staff misled its own board and then claimed otherwise; that its board members lied about looking into allegations; that it hid millions of dollars of payment to Washington lobbyists; and many, many more.
For those that have heard of it, the organization has become a shorthand for dysfunction and unaccountable power. It is the internet's FIFA scandal.
Faced with that level of intransigence and structural complacency, it should come as no surprise that governments have ended up resorting to legislation in a field where for decades everyone agreed that self-regulation and a free market was the best solution.
The extraordinary losing battle that ICANN and American IP lawyers have waged against the impact of GDPR and Whois is the clearest indicator yet that that approach is working and the tide has changed when it comes to the internet.
First ICANN ignored GDPR. Then it threatened a European registry when it failed to offer a Whois service, and that registry informed ICANN that that part of its contract was "null and void" given the new law. Then ICANN tried to retain its existing system with a few tweaks but couldn't push it past either side.
Europe fires back at ICANN's delusional plan to overhaul Whois for GDPR by next, er, yearREAD MORE
Then, with time running out, it persuaded itself it could demand a special one-year "moratorium" on the law. And the IP lawyers were only too pleased to explain not only why that had to happen but also the fact that, under their interpretation of European law, ICANN didn't really have to make any changes to Whois anyway. Both ideas were laughed out the room.
And then, in a desperate last measure, ICANN sued in German court to enforce its contract and was told, No, your contract is not valid.
From today, any registrar that doesn't want to follow the Whois as outlined in ICANN's contract is pretty much free not to do so. By refusing to cede to anybody, ICANN undermined itself.
Having ignored warnings from European data regulators for more than 15 years that Whois was breaking European privacy laws, the regulators fought back. And now ICANN has to deal with the uncomfortable reality that is no longer the internet's god but an administrative body required to do its job and no more.
So what will become of Whois, ICANN and the US-led internet? We should know in the next year.
ICANN has said it will devise a new Whois model within 12 months. Having been forced into a box on its policies, it will almost certainly have to listen to those voices it has ignored for a decade – and that will mean that the all-powerful US corporate interests within the organization have little choice but to continually back down in their demands.
Whether others take this opportunity to increase their influence within the body, only time will tell.
ICANN as an organization also has an opportunity to change with the times. The CEO and board have been able to see first hand how they were given terrible advice time and again from their own staff. The next year would be a good time to clean house and install a more diverse, open-minded and international team.
And as for the US-led internet? That is already fading. Which is good in some ways and bad in others. Tech giants like Google, Amazon and Facebook are under investigation in Europe and may even face antitrust proceedings in Washington DC. Even if they aren't broken up, they will increasingly have to play by European rules.
The bizarre decision made by the current administration to put the interests of cable companies ahead of internet users and companies through repealing net neutrality rules is likely to further encourage the creation of tech startups in other parts of the world.
And the current wave of protectionism espoused by the Trump Administration may be good for pulling in votes but is likely to diminish the international reach of American companies at a time when China and India are resurgent.
Not that Whois, ICANN and the US-led internet are going anywhere. They just won't be as unassailable or as likely to make terrible decisions. ®