By custom and contract the Commerce department controls the sole "legacy root" to the Internet domain name system. This legacy root lies enables people to register for domain names ending in ".com," and other things, and helps catchy names get translated into numerical addresses so computers can find each other. A single root keeps my mail address global yet unique, so that e-mail addressed to my Turkmenistan address, email@example.com, finds me in Miami. Although there are no technical obstacles to alternate roots, and alternate roots need not imply duplicate addresses, inertia stops people re-tuning their Internet settings to alternatives. While this inertia persists, control over the legacy root is control over whether competitors to .com (imagine .web, .biz, or .smut) have a meaningful existence. This control provides a rare choke point over the Internet. It can be leveraged to do good things, like ensure there is competition among domain name providers, or very bad things, such as forcing other participants in the system to facilitate or even enforce content controls.
Last year the Commerce Department issued a White Paper calling for the creation of a private body to take over the legacy root in a "transparent" process. Instead, behind closed doors, an internationally diverse group of Internet worthies incorporated ICANN, the Internet Corporation for Assigned Names and Numbers, and set to work making "interim" decisions and creating a new, still-unfinished, governance structure. It appears, however, that the Administration still plans to turn over its critical role in Internet governance to ICANN, a private non-profit California corporation currently accountable to no one. Today [Thursday July 22] the House Subcommittee on Oversight and Investigations will hold hearings asking "Is ICANN Out of Control?".
The accountability gap spurring today's hearings could be lessened if ICANN signed a "Contract With The Internet." This contract would be enforceable in court, and would protect Internet users around the world as Commerce and/or ICANN make critical decisions in the next year.
ICANN says it wants competition in the .com registration business. Everyone, except perhaps the monopolist created by earlier US policies, agrees this is a good idea in principle. After that, however, things get very complex very fast: There is increasing controversy over how competition works, how individuals should be represented in ICANN, which new top-level domains should be added, and the terms for obtaining lucrative franchises for new domains. Further controversy shadows proposals for mandatory, uniform, international arbitration of domain name poaching claims ("cybersquatting"), whether arbitration should be required in all domain name disputes, and whether trademark lawyers whose clients' top choices in .com are already taken are bullying the people who got there first.
Although almost a year old, ICANN's Board remains unelected and unrepresentative, its meetings are secret, plans for an international membership to elect the first real Board remain unclear, the views of people who can afford to attend meetings in person appear to be privileged over Internet participants, and there are signs that some of the powerful subsidiary bodies it created are being captured by corporate and especially trademark interests. Not least, ICANN proposed a "tax" of a $1 per domain name, which would have given ICANN a large, guaranteed, competition-free, ever-increasing source of revenue.
Today's hearings will expose the ICANN accountability gap: Government agencies have to observe due process. ICANN doesn't because it is private. Corporations have shareholders and competitors. ICANN doesn't because it is non-profit and has a unique relationship with the Commerce Department. Many non-profit organizations have members who can challenge corporate misbehavior. ICANN doesn't, although it will someday. No one would suggest that ICANN is corrupt, but the structural similarity to the un-accountable International Olympic Committee is worrying-and suggests that government should not transfer functions to it until some accountability is built in.
ICANN says it wants to operate according to the Internet tradition of consensus. Meanwhile, however, it seeks contracts with key parties that would require them to obey ICANN. These contracts, however, could be used to make ICANN more accountable. In preparation for today's hearings, the Department of Commerce suggested that ICANN should contract with key stakeholders to "restrict its policy development" and to act in "accordance with the principles of fairness, transparency and bottom-up decision making." These agreements, Commerce suggested, "give all who enter into agreements with ICANN a contractual right to enforce safeguards that are now contained in the ICANN bylaws and in the antitrust laws of the United State."
That's a great start, but it doesn't go far enough: Rather than limit enforcement to corporations contracting directly with ICANN, Congress and Commerce should insist that ICANN and major stakeholders make third-party beneficiary agreements in favor of every holder of a unique domain name. A third-party beneficiary agreement is a deal by which two parties agree to provide a benefit for someone else. If either party reneges, the third party can sue even though he didn't sign the contract or put up any money for the benefit.
ICANN could promise openness, due process, even-handedness, user privacy, protection for noncommercial expressive activities, and agree to avoid facilitating content controls. Making promises for the benefit of registrants would empower the several million people directly affected by ICANN's actions to monitor and enforce the agreements. The large number of beneficiaries makes it an unusual use of this legal device, but so long as the beneficiaries are identifiable registrants, the odds are that most courts would enforce the deal. If ICANN got out of hand, registrants could sue individually or as a class. In one stroke ICANN would be accountable to the Internet community.
Privatized international governance is only an better than ordinary
government when the new governors are at least as accountable as the old
ones. The Contract With the Internet would help provide the checks and
balances ICANN needs.