This post should have three para on the front page. More by accident than design, in the late Twentieth Century the United States Government found itself with de facto and also probably legal control of the DNS. Oddly, at the time, this did not feel like an unmitigated blessing as it thrust the US government into controversies that seemed to have no politically palatable solutions.
In the 1980s and before, control of a small network used primarily by academics was of little interest to most people. But as the Internet began to become commercialized in the late ’80s and early 90s, and as its growth accelerated, DNS issues became more contentious and began to concern even the White House. Proposals to create new top-level-domains (TLDs) ran into opposition from organized trademark-holders who already were concluding that the existing DNS was an obstacle to their legal rights and brand management objectives. Creating new TLDs threatened more cybersquatting and more trademark disputes, and they wanted none of it. On the other side, would-be registries and registrars wishing to enter the domain name selling market sought more names to sell, while firms who found themselves a little late to the Internet party wanted short memorable names. Both sides looked increasingly to the White House to solve their problems, and the White House, in the person of Ira Magaziner, wanted to get rid of the (to this day unsolved) problem as fast as possible.
On June 5, 1998, the National Telecommunications and Information Administration (“NTIA”) of the United States Department of Commerce issued a policy statement, the “White Paper,” calling on private sector Internet stakeholders to form a not-for-profit corporation to take over the administration of the DNS and the Internet numbering system. On October 26, 1998, ICANN was incorporated as a California not-for-profit corporation, and it then asked DOC to choose it as DOC’s private partner. After a number of complexities that need not detain us now, on November 25, 1998, DOC chose a somewhat modified ICANN to be its partner or agent and basically handed ICANN de facto control over the DNS.
The legal basis of the original ICANN-DOC relationship rested on three agreements: (1) a Memorandum of Understanding, later replaced by a “Joint Project Agreement”; (2) ICANN’s Cooperative Research and Development Agreement (CRADA) with the US Government. and (3) a contract between ICANN and the US Government for performance of the so-called IANA function (relating to the assignment of IP and protocol numbers).
Over the course of the past decade, each of these agreements had a number of amendments; these amendments gradually gave ICANN more authority or more independence. Full independence from the US was clearly ICANN’s goal. But the US retained leverage over ICANN for a number of reasons. Some were contractual, and are discussed below. Others were political and institutional. Of these institutional reasons, likely the most important was the role played by Network Solutions Inc. (NSI), a private for-profit company that had made a fortune selling domain names, especially in the .com domain for which its served as registry and first monopoly and then primary and then primus inter pares registrar. The actual root zone file was and is housed on a computer run by NSI, not ICANN, seemingly a source of some heartburn in Marina del Ray. ICANN had a long and sometimes adversarial relationship with NSI, and even at best the relationship was certainly arms-length. This allowed the US Government significant leverage: There was, at the end of the day, little chance that someone at NSI would take orders from ICANN if the USG told them not to.
The MOU was repeatedly amended during its life. Ultimately in September 2006, DOC and ICANN rebadged the MOU as a “Joint Project Agreement”. By that point, ICANN’s obligations to perform specific work items was much reduced. In contrast, however, the legal relationship between ICANN and the US was not that different from what it had been, and ICANN continued to press for full independence. While the US Government may have had some concerns about its legal authority to cut ICANN free, the political ramifications of being accused of “losing the Internet,” likely loomed larger. Despite this, ICANN’s case for independence continued to gather steam.
ICANN’s formal arguments rested in part on commitments in the White Paper that had called ICANN into being, and on the various statements from US Government officials since then. In response to the objectives set by the US, ICANN established a lengthy paper record – sometimes even congruent with reality – designed to demonstrate that it was achieving each of the objectives set for it in the MOU. And indeed, even if the objectives had not all been met on the original short timetable, the checklist of objectives that the US was willing to say had not been achieved kept shrinking from MOU Amendment to Amendment.
If the legal regime of the MOU and even the JPA retained features entrenching the US government’s residual authority, that same authority was under increasing assault in the international political realm. Non-US governments and interest groups increasingly asked why it should be that the US Government should have a uniquely controlling position in the DNS. Where once the bulk of Internet users had been in the US and perhaps a handful of other countries, now the Internet was increasingly global. Influential voices in the EU and Japan, soon joined by others from every continent and region, began to push for the US to divest itself of its controlling position, or for ICANN’s role to be turned over to a more international body.
ICANN responded to the threat of the creation of a transnational competitor (or successor) with several initiatives designed on the one hand to appeal to non-US government and technical constituencies while on the other hand not angering the US government on whose good will, or at least acquiescence, ICANN still depended if it were ever to achieve its goal of independence.
ICANN opened a branch offices in Brussels, where the European Commission has its headquarters. ICANN revamped its ccTLD operations to remove some of the practices that had most irritated foreign governments. It also supported every foreign government that sought to take over the domestic ccTLD, whether or not this move was opposed by the incumbent – a policy likely at odds with earlier Internet norms. More importantly, ICANN gradually expanded the role of its Government Advisory Committee (GAC).
