by: Kim G. von Arx and Gregory R. Hagen[*]
III. DoC's CONTRACTUAL CONTROL OF ICANN
1. The Case of the Redelegation of .au, .jp, .bi and .mw
2. The Case of the .us Redelegation and the Power of the DoC
{1}
In the year 2000, the Government Advisory
Committee (“GAC”) of the Internet Corporation for Assigned Names and Numbers
(“ICANN”) passed a set of principles that essentially claimed national sovereignty
over country code top-level domains (“ccTLD”s) such
as .us, .ca, .uk and .au.[1] Shortly thereafter, ICANN redelegated
several ccTLDs in accordance with new GAC principles.
Despite the outcry accompanying the passage of these principles[2] and ICANN’s self-professed adherence thereto, the entire exercise
could easily be criticized as merely symbolic because of the overriding power
of ICANN in the operation of the Domain Name System (“DNS”).
Indeed, Stuart Lynn, ICANN’s current president, summed up the lack of power that
ccTLDs have within the governance structure of the
Internet when he opined that “ICANN could, in theory, recommend that a particular
ccTLD be redelegated to
a cooperating administrator. If the
{2}
As
{3}
The DoC has a strong enforcement power because it has a domain
registrar’s or registrant’s virtual life in its hands. It has the power to enforce the decision by
evicting anyone from his or her cyberspace domain. As Post quite aptly stated, “the domain name
system . . . [is] the one place where enforceable Internet policy can be promulgated
without any of the messy enforcement and jurisdictional problems that bedevil
ordinary law-making exercises on the Net.”[4] Put another way, the hierarchical architecture
of the DNS is sufficient to endow those who control the A root with the power
to make and enforce law and policy regarding domain names. Equally troubling, the control over the A root
also invites economic, political, and social pressures that inevitably force
ICANN to go beyond its delegated powers of technical management of the system
to include derivative powers.[5] Such derivative powers may be applied to areas
considered to be those reserved to national sovereigns, including matters
of registry regulation, name policy, electronic surveillance, national defense,
and critical infrastructure.
{4}
Despite a few early demands that the
U.S. withdraw from control of the DNS, and the later emands
and claims of GAC, curiously, none of the individual 243 countries with delegated
ccTLDs have complained forcefully about the lack of sovereignty
over their own ccTLD, nor of any of the general
policy implications. This lapse is
peculiar since nations desperately guard sovereignty over their physical domains
against advancing globalization. Italian
prime minister Silvio Berlusconi,
for example, in his speech to the Italian parliament, reassured the nation
as well as the European Union (“EU”), of
{5}
ICANN originated in part from the recognition
of the globalization of the Internet as a communications network. Because
of the increasingly global scale of the Internet, the U.S. Government desired
to rid itself of the task of operating the DNS and also wanted to obtain international
input into the technical management of the DNS.
At the same time, it wanted to maintain control over critical DNS policies
through a reservation of control of the A root.
The solution that was arrived at was to privatize the management of
the DNS by placing management in ICANN, a private
{6}
Thus, from its inception, ICANN was
intended to preclude the participation of “national governments acting as
sovereigns. . . [or] intergovernmental organizations acting as representative
of governments.”[7] Yet, the formation of ICANN to manage the DNS
appeared to be tempered by the
{7}
As Barber has pointed out, one aspect
of globalization – privatization – has had the effect of placing transnational
organizations outside the regulatory environment of the nation state.[8] On his view, such organizations are rogue institutions
operating in an anarchic realm devoid of significant regulation, unprepared
to enter into a form of international civil society.[9] Similarly, ICANN has been placed in the curious
position that its conduct is too tightly controlled by the DoC, on the one hand, and not accountable to nation states
and the
{8}
The source of control over ICANN is
control over the A root. Thus, the ultimate problem with DNS, on our account,
is precisely that the
{9}
While it is possible to overstate the
risks associated with foreign control over country domains, the existing system
highlights a tension between national interests and the existence of a network
architecture which is currently beyond the ability of national governments
- other than the
{10}
This paper will briefly introduce DNS
and also introduce the problem of
{11}
The existing naming scheme is hierarchical.
Internet address names consist of alphanumeric strings separated by
a dot (•), e.g., law.richmond.edu, and are read from left (the lower level
of the domain) to right (the higher level of the domain). Theoretically, there is a highest-level domain
at the apex of the domain name space, the “root domain,”
which is usually left unnamed, under which all domains fall.
{12}
There are 258 top-level domains, which
are the highest level of named domains, i.e., the part of the address to the
extreme right. There are three types
of TLDs. One is the generic
TLD (gTLD)[13] such as .com, .org,
.net, and .mil. The second one is the
country code TLD ("ccTLD")[14] such as .ca (Canada),
.de (Germany), .uk (United Kingdom), .tv (Tivoli), .ch (Switzerland),
.au (Australia), and .jp (Japan). Finally, there is one infrastructure TLD ("iTLD")[15] called .arpa.
ccTLDs are perceived as being connected
to a specific territory or country whereas gTLDs
are global and generally not associated with any territory or country. The iTLD is the Address and Routing Parameter
Area domain and is used solely for Internet infrastructure purposes; therefore,
it does not affect or concern the normal user in any way.
{13}
While the architecture of the DNS is
becoming common knowledge, a brief review is helpful as background to our
main thesis.[16] Each computer located on the Internet is assigned
an Internet Protocol (“IP”) address for data packet delivery. Many computers, or hosts, that are connected
to the Internet are also assigned an alphanumeric name such as “icann.org.”
This name, however, is not required by the network software, but is
used for human mnemonic convenience and to provide for stability of services,
such as e-mail, when there is a change of host.
To the network, however, “icann.org” is meaningless until it is translated
into a numerical IP address. Name resolution
is carried out by the DNS, a distributed naming system comprised of a huge
list of computer names and their corresponding numerical IP addresses.
{14}
When a domain name is entered into the
location box of an Internet browser, a local DNS resolver,
a small piece of client software, first contacts a name server close to the
Internet surfer to determine the website’s IP address.
Generally, the local ISP name server is able to supply the IP address
associated with the domain name. If
the local DNS server does not contain the needed information, then it will
forward the request to the A root name server controlled by ICANN.
This A root name server contains the IP address of all the authoritative
name servers for TLDs in a file, the A root zone
file. This A root name server
will return the information about the location of the authoritative name server
for the requested domain name.
{15}
In fact, there is no single unique root
name server. There are thirteen root
name servers (which are assigned letters from A–M).[17] Only one of them, the so-called A root, contains the “original” root zone file. The A root, the primary server, resolves queries
by referring the inquiring computers to the Internet
address of the computer that has the authoritative list of the registered
domain names in the relevant TLD. This single root zone file is made available
to the twelve other root servers, the secondary root servers. Nine of the
secondary servers are also physically located in the
{16}
The sharing of control over
the A root suggested in this paper would amount to “splitting” the root in
the sense of defying the authority of the A root. In the past, there were concerns that secondary
root servers could split, endangering internet stability. It has been argued,
however, that, as long as the United States government retains control of
the A root, the probability that any of the other secondary root servers would
choose to split, i.e., that they would no longer regard the A root as authoritative,
is very remote.[19] The reasons proffered are as follows. First, as discussed above, eight of the legacy
root servers (including the A root) are owned by the
III.
DoC’s CONTRACTUAL CONTROL OF ICANN
{17}
DoC controls ICANN
through a contractual framework underpinned by the DoC
control of the A root domain server. DoC control of the A root came about because the
{18}
Fortuitously, a new corporation,
ICANN, was soon incorporated and the
{19}
In regard to the Memorandum
of Understanding, the original and all subsequent extensions provide for DoC’s
power to terminate the agreement on 120 days notice.
Also, the major contracts between DoC and
ICANN require annual or semi-annual renewals, and as such DoC
has the power to pressure ICANN into submission by threatening transfer of
powers to another body. [29]
IV. NATIONAL GOVERNMENTS’
ROLE IN THE DNS
{20}
Technically, the ccTLDs
are subdomains of the “root domain” created by the
{21}
In spite of the fact that ccTLDs
are subdomains of the root domain, countries are
increasingly associating their ccTLD with their respective country. Certain ccTLD registries, such as
{22}
According to a recent survey by Market
Research commissioned by CIRA 75% of Canadians believe .ca means
{23}
Some countries have claimed that they
are national authorities over their ccTLDs. For example,
the EU noted that it appears to be the competent ‘public authority’ for the
purposes of the .eu TLD, and should be recognised as such by ICANN.[38]
{24}
Concerns over national sovereignty
culminated in the issuance of a communiqué by GAC establishing principles
of delegation and redelegation of ccTLDs.[43] These principles established
a set of correspondence that must occur in order for a valid redelegation to take place. In its communiqué, “[t]he GAC
also reaffirmed that the delegation of a ccTLD Registry
is subject to the ultimate authority of the relevant public authority or government.
The GAC discussed the development of best practices for the administration
of ccTLDs and agreed to continue this discussion.”[44] In
the earlier ICP-1, the role of national government had been less influential
than that accorded by GAC in the delegation and redelegation
process: “The desires of the government of
a country with regard to delegation of a ccTLD are
taken very seriously. The IANA will make them a major consideration in any
TLD delegation/transfer discussions.”[45]
{25}
Despite the criticisms that
have been leveled at ICANN regarding its management of the DNS, there has
been little critical comment on the U.S. DoC control
over the A root server system. While Stuart Lynn’s President's Report: ICANN – The Case for Reform noted that “if ICANN comes to be seen . . . as simply a tool
of the US Government, it will no longer have any hope of accomplishing its
original mission,” [46] this
point has not spurred any widely agreed-upon solution. Neither the Blueprint
for Reform,[47]
The Heathrow Declaration,[48] the New.net
Proposal[49] nor John Perry
Barlow’s Accra Manifesto,[50] substantially
criticize the
{26}
Past and recent developments in the
It
might be that after the Sept. 11 attacks, the
{27}
Carl Auerbach, an ICANN director, seems to agree with Müller-Maguhn.[55] Both refer to remarks made by Nancy Victory,
Assistant Secretary of Commerce for Telecommunications and Information as
evidence of this recalcitrance, stating that, “[r]egarding
the A Root server, the Department of Commerce has no plans to transfer policy
control . . . [W]hen the necessary technical capacity is in place, the department
may enter into a management agreement or other legal arrangement with ICANN
for operation of the A Root server.”[56]
V.
THE POWERS OF ICANN AND THE
{28}
The power of the
{29}
It
is clearly not enough for the
{30}
The
The U.S. Government believes that the Internet is a global medium and that its technical management should fully reflect the global diversity of Internet users. We recognize the need for and fully support mechanisms that would ensure international input into the management of the domain name system. In withdrawing the U.S. Government from DNS management and promoting the establishment of a new, non-governmental entity to manage Internet names and addresses, a key U.S. Government objective has been to ensure that the increasingly global Internet user community has a voice in decisions affecting the Internet's technical management.[61]
{31}
Regardless of the fact that ICANN has
directors from diverse geographical areas, the international makeup of ICANN
remains more apparent than real. National governments
are not members of ICANN, and the GAC is solely an advisory group which ICANN
may ignore at its pleasure. More importantly,
the
{32}
ccTLDs were delegated originally by Jon Postel without the benefit of any formal written agreement.
However, ICANN is attempting to remedy the lack of a contractual arrangement
between ICANN and the various ccTLDs by pressuring ccTLDs to enter
into a formal contractual relationship.[62] This contract-based scheme is already becoming
the standard method of governing relations between TLD registrars and registries.[63] Until recently, none
of the ccTLD registries had been able to arrive
at a mutually acceptable agreement with ICANN.
However, on
{33}
Article 6.2 of the sponsorship agreements
sets out when ICANN and the sponsoring authority can terminate the agreement.[67] ICANN can unilaterally terminate the agreement
if there is a material breach of the contract, or if arbitration shows that
the sponsoring organization is in violation of the agreement.[68] Article 6.3 sets out the effect of termination:
upon termination, ICANN must, with coordination of the government authority,
notify the sponsoring organization of the successor.[69]
{34}
Most countries have not signed an agreement
with ICANN due to differences of opinion in regard to adequacy of payments,
equality in decision-making, representation within the ICANN structure, and
various other matters.[70] This, of course,
raises the following question: why were the registries of
1. The
Case of the Redelegation of .au, .jp,
.bi and .mw
{35}
The source of ICANN’s
power over registrars is its ability to “recommend [to DoC]
that a particular ccTLD be redelegated to a cooperating
administrator.”[71] As already
mentioned above,
It is further RESOLVED [00.75] that in view of the state of ongoing discussions
directed toward reaching stable and appropriate agreements between ICANN and
the ccTLD organizations, delegation of additional
ccTLDs should be finalized only upon achievement
of stable and appropriate agreements between ICANN and the ccTLD
organization, in a form approved by the Board.[72]
{36}
Although this resolution
concerns the creation of additional
ccTLDs, it is possible that this policy was applied
by ICANN to redelegations as well.[73] On this view, each of the registries of
{37}
However, this explanation does not explain
why
2.
The Case of the .us Redelegation and the Power of
the DoC
{38}
Perhaps, the most interesting
example of the use of the power to redelegate (without
any regard to ICANN policies and procedures which other ccTLDs are meticulously forced to follow)[80] is the redelegation
of the .us, in that it reveals that the technological control of DoC
allows it to influence policy. This
transfer was apparently forced upon the existing .us registry, Verisign,
and was done without regard for ICANN’s policy that
required mutual agreement between the old and new registries. Indeed, it was completed “before the completion
of the normal IANA requirements [of a formal written agreement].”[81] While the earlier hostile redelegation
of .au was done with ICANN’s full approval, the
redelegation of .us was not. The official, but obscure, explanation can be
found in the only existing communication, an announcement from ICANN about
the redelegation. It reads: “[t]he
United States Government informed ICANN on
{39}
ICANN admits that if it
had not accepted the request from the
C. Power to Create and Destroy
ccTLDs
{40} The control over the A root provides the power to create or destroy ccTLDs and implies that no country or union of countries can unilaterally force inclusion in the A root. In this area, ICANN has purported to maintain a separation between technical operation and policy by deferring to the ISO 3166-1 country code list. Because IANA cannot assess whether or not particular areas are “countries,” the policy set forth in ICP-1 for delegation matters has been to simply refer to the ISO 3166-1 list as an independent and authoritative source of two-letter abbreviations for countries and areas.[85] Therefore, almost all of the ccTLDs are derived from the official ISO standard. Five ccTLDs, however, have been created by ICANN which are not based on the official ISO list, but which can be found on the ISO country code reserve list.