The Magazine

But ICANN Can’t

Don’t lose sleep over international ‘control’ of the Internet.

Mar 31, 2014, Vol. 19, No. 28 • By ARIEL RABKIN and JEREMY RABKIN
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The Commerce Department issued a low-key bureaucratic announcement on March 14: The government will not renew its contract with the Internet Corporation for Names and Numbers (ICANN), under which ICANN has administered the Internet’s domain name system since the mid-1990s. U.S. government supervision will be superseded next year, according to the announcement, by new arrangements to “support and enhance the multistakeholder model of Internet policymaking.”

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Critics on the right worry that the Obama administration is giving away the Internet to foreigners. It’s an understandable concern, given the administration’s general approach to foreign policy. It just happens to be a wildly exaggerated concern here, given the actual power of ICANN.

We often talk about the Internet as if it were a single system. That sort of talk suggests that it must have an ultimate control center. Then it’s easy to imagine ICANN is that center, with thousands of beady-eyed nerds monitoring computer screens showing traffic patterns throughout the World Wide Web. Aaron Sorkin might convey the drama of the setting, where ethnic upstarts design the control programs, but the better-dressed, preppie controllers still get the girls.

But that’s a screenwriter’s fantasy. The actual ICANN is more like the North American Numbering Plan Administration (NANPA). Never heard of it? It assigns telephone area codes. It is operated by a private company, Neustar Corporation. It is one of those happy services whose obscurity confirms its effectiveness.

Some people in Manhattan are upset that they can’t get their phone numbers assigned to the historic Manhattan area code, 212. Apart from such snobs, very few people notice NANPA’s work. It doesn’t matter what area code you have, so long as it directs long distance calls to your phone and not to a phone in Idaho.

Handing out area codes is pretty much what ICANN does. It assigns top-level domain names and numbers to direct Internet traffic—as with “.com” or “.org” or “.edu.” ICANN does not operate any infrastructure. The actual machinery that connects users to websites is owned and operated by Internet service providers, who are in no way subordinate to ICANN. ICANN does not even have responsibility for assigning web addresses to individuals and organizations. If you want to buy an address in .com, .net, or the like, the registration is handled by a private registrar. ICANN is not in any way involved in such transactions.

ICANN will continue to operate as a private corporation in Southern California—subject to U.S. law. But what if, like Edward Snowden, ICANN managers absconded to Moscow with all their secret files? It wouldn’t matter much. The companies that actually operate Internet infrastructure would pay no heed if ICANN suddenly started barking new orders in Russian. The operators (the “root server technical operators association”) could improvise new coordinating arrangements among themselves relatively quickly. The U.S. Internet industry is regulated by the FCC and overseen by the federal courts; there is no danger that the Internet will be totally divorced from domestic political or legal accountability.

Down the road, there is some risk that ICANN decisions might complicate international diplomacy. Each nation now has its own national domain name—“.uk” for Britain, “.ca” for Canada, “.ru” for Russia. There has been little controversy about the assignment of these domains. China has not objected to Taiwan’s “.tw.” Israel has not protested the Palestinian Authority’s “.ps.” One can imagine disputes about who should be assigned control of Ukraine’s domain name, if the country splits into pieces. But even such a dispute would remain a minor diplomatic incident, since Ukrainian users and websites are not limited to sites with the Ukraine suffix. Not many people would sign up for Internet service even there, if that’s all they got.

Hollywood fantasy aside, there remains cause for concern about what the Obama administration has done. First, the Commerce Department’s announcement speaks in very vague terms about making ICANN accountable to “the global multistakeholder community.” But it has left it to ICANN itself to arrange the “transition” to new accountability structures. The odds are that without a formal role for the U.S. government, ICANN won’t impose much new accountability on itself.

ICANN already has a whole series of councils and conferences offering a sense of “participation” to an open-ended set of “stakeholders”—basically, whoever wants to send representatives to attend periodic meetings in exotic locales (the next ICANN conference will be in Singapore). But as with other corporations, voting members of ICANN’s board have the last word on its policy. A plurality of board members are selected by the existing board. Others are selected by particular constituencies, like the “Country Code Names Supporting Organization.” Once selected, these board members can’t be removed by the constituencies that sent them. As a nonprofit corporation, ICANN has no stockholders. However loosely or tightly organized, the “stakeholders” have no authority to override any decision of ICANN’s actual directors.

There is legitimate concern about ICANN profiteering. ICANN derives the bulk of its income from fees it charges to register new domain names. Left to itself, its incentive is to continue handing out new top-level domains, regardless of consequences. There is already concern that ICANN has been shamelessly promiscuous in embracing new top-level domains—dot this and dot that.

Established websites on traditional domains (like “.com”) worry that their names will reappear in new domains (“.biz” or “.fun” or “.rec”) and divert confused customers to competing sites—or to scams. Squatters often rush to register established website names in the new domains, so they can sell the rights to the original owners (of the same names, in older domains) for a hefty fee. There is no reason to trust an unaccountable ICANN to strike the right balance here.

There are more serious concerns down the road. The Obama administration has denied that its current policy is an effort to mollify foreign governments, upset at disclosures of NSA spying on their leaders. And it’s true that cutting U.S. government ties to ICANN has been under discussion since the beginning of the Obama administration—long before Snowden’s disclosures began last summer.

Still, foreign governments—and foreign voters—are upset about NSA spying. So it is hard not to read the Commerce Department’s announcement as a placating gesture. But it’s a gesture with no relevance at all to actual spying by NSA or anyone else, any more than your vulnerability to telephone wiretaps turns on who controls that North American Numbering Plan for area codes.

The thing about phony gestures is that they risk whetting the appetite for real gestures. By throwing ICANN to some hoped-for-future-development in international “accountability,” the Obama administration has shrugged off any serious discussion about the kind of international control scheme we should want. China, Russia, and a supporting chorus of developing countries demand open-ended international controls through the U.N.’s International Telecommunications Union (ITU). EU countries have resisted this idea but offered no clear alternative.

What the Obama administration has done with its latest announcement is give up at the start a main element of U.S. leverage in negotiations about Internet governance in the future. The administration says it will end its formal ties with ICANN next year—just as it will withdraw troops from Afghanistan. And now that we’ve settled that, can we talk about the future?

Even here, the consequences won’t be disastrous. If Russia and China and a hundred developing countries manage to vote new regulatory authority to the ITU, American and European Internet service providers can refuse to cooperate. With the Internet, as with more conventional trade, poor countries want access to rich countries more than the rich want to engage with the poor. But if we want common standards on the Internet—on policing crime or protecting trademarks or defining what content should be excluded (such as child pornography)—we would find it easier to develop them with some sort of agreed forum for negotiation.

Contrary to dark speculations by various conservative commentators, ICANN really can’t facilitate Internet censorship in China and Iran to please those governments. ICANN can’t stop them from doing that now. Nor is there a plausible scenario in which ICANN imposes censorship on U.S. websites. Actual websites operate through thirteen root servers—some still directly run by U.S. government agencies, some by U.S. universities, some by U.S. private companies. It would be no technical challenge for them to bypass ICANN and coordinate among themselves. Politically, it’s really unimaginable that they would all bow to Chinese pressure for censorship because ICANN told them they should.

But it’s still true that changing the status of ICANN was an opportunity to initiate a broader discussion about Internet governance. We might have encouraged some sort of international control scheme weighted to the countries with the largest volume of Internet traffic and with a supermajority requirement in voting, as with the World Bank and the IMF. We might have sought to craft safeguards against future abuse, by getting much of the world to commit to limits on suppression of web content. We might have arranged a consortium of Internet companies to oversee ICANN under a more formal control structure. Instead, the Obama administration decided to make no decision—to simply withdraw from any direct supervisory role over ICANN, without any agreed alternative. It may please some foreigners right now, but it’s leaving more serious problems to an undefined future—as in so many abortive foreign policy ventures by this administration.

There will be a price to pay down the road for shrugging off ICANN now. But that price won’t compare with the price we pay for mishandling Iran’s nuclear program or Russia’s territorial expansion. We ought to keep the ICANN dispute in perspective.

Jeremy Rabkin is professor of law at George Mason University. Ariel Rabkin is a postdoctoral researcher in computer science at Princeton University.

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