Is Prague the Last Hurrah for the Internet as We Know It?
I will spare readers details on ICANN’s meeting in Prague that is concluding this week. No doubt there will be more than enough coverage from other bloggers. Suffice to say the meeting has been filled with debate and devoid of solutions. No surprise there. That’s precisely the way ICANN likes it.
Instead, I’d like to take readers on an historical journey explaining how ICANN got to a point of being so powerful yet so unaccountable. Bottom line: that blame falls squarely on the shoulders of the past three Administrations – Clinton, Bush, and Obama – and a Congress that allowed the United States Department of Commerce (DOC) to slowly and systematically unravel virtually any semblance of oversight for what has become the most important engine of commerce and democracy in our lifetime.
While the origins of the Internet date back to the 1960’s, it all began for we mere mortals in 1993 when one of the first web browsers – Mosiac – was introduced with a graphic interface that worked much like today’s browsers, albeit not quite as pretty and sophisticated. Browsers like Explorer, Safari, Firefox and Chrome, together with search engines like Google, Yahoo!, Alta Vista, Bing and others came later. In fact, Mosaic (which later became Netscape) is where Al Gore actually has some cred concerning the Internet. It was Gore, while Vice President, who pushed the United States to fund ARPANET and the development of technology like Mosaic and other Internet initiatives. So while Gore did not invent the Internet, as popular myth likes to report or as he might like to think, he sure did give a good kick in the ass.
Very early in the developing years, concern was expressed that the United States controlled too much of the Internet’s ecosystem. The United States developed most of it through billions invested in technology that interconnected the computers and computer networks that made up the Internet. What started in the ‘60’s as a U.S. Department of Defense project, evolved, largely through public and private leadership of some very smart people in the United States and a few other countries, into a place on the Internet that became known as the World Wide Web – the launching pad for the ecommerce we enjoy today. It also evolved to become a lot more, most importantly a foundation for freedom of speech never before seen on a global basis, empowering anyone with an Internet connection to change his or her world and, eventually, the world of others.
In those early years, the dolling out of domain names in .com, .org, .net, and in the restricted domains of .mil, .gov, and .edu was operated by Network Solutions, Inc. (NSI) through a 1991 contract with the U.S. Defense Information Systems Agency (DISA). The domains were initially offered for free. Nice deal. In 1995, however, the National Science Foundation (NSF) bestowed the right on NSI to charge for domain name registrations. The initial price was $100 per domain. It didn’t take long for NSI to trade profits for the original idea that .com was the exclusive domain for commercial ventures, .org for organizations, and .net for companies or other entities involved in the “mechanics” of the Internet. The result is what we have today – the three largest TLDs with no real distinctions with respect to those who are registered in them. In response to all of this, a great global cacophony arose among Internet purists who considered $100 per domain an exorbitant fee and decried U.S. control of the Internet.
So on July 1, 1997, the Clinton Administration issued its Framework for Global Electronic Commerce, directing the DOC to privatize the domain name system (DNS) in a manner that increased competition and facilitated international participation in its management. That was the first step to ceding control. Next, on February 20, 1998, the U.S. Department of Commerce issued A Proposal to Improve the Technical Management of Internet Names and Addresses, popularly known as the “Green Paper” in which the DOC outlined how it would deal with President Clinton’s mandate.
To the surprise of some but not to many others, the Green Paper triggered criticism around the world that the DOC plan perpetrated a continued stranglehold over the Internet by the United States, alleging the plan did not truly cede control to a private corporation. Some in Europe complained that “the current U.S. proposals could, in the name of the globalization and privatization of the Internet, consolidate permanent U.S. jurisdiction over the Internet as a whole.” In what many described as a feeble attempt to address the global concerns, the DOC released another paper that defended the earlier findings – the Statement of Policy on the Management of Internet Names and Addresses or the “White Paper.” All of this resulted a request for proposals from would be suitors to administer the DNS across all top level domains. ICANN was formed in 1998, won the RFP, and eventually entered into a “Memorandum of Understanding” with the DOC for the administration of the DNS.
The primary reason the DOC had the right to hold the auction (although the United States did not receive any compensation from ICANN), was its control over a good deal of the infrastructure of the Internet, most notably the “authoritative root server” or “A” root server. While other root servers are located around the world, the authoritative root server is, in simplistic terms, the door into the Internet and the World Wide Web. Any domain name must be programmed into the authoritative root server to then migrate throughout the Internet and work as an “address.” The United States still controls the authoritative root server through what is known as the Internet Assigned Number Authority (IANA). IANA allocates “blocks” of unique addresses to the Internet’s Registries that, in turn, allocate them among Registrars and eventually to you and me. IANA is controlled by the DOC’s National Telecommunications and Information Administration (NTIA). In turn, NTIA has a contract with ICANN to administer the actual operations of IANA. It is important to note that the IANA contract is NOT the contract that allows ICANN to run the DNS and control top level domain administration. More on that later. ICANN’s current contract to administer the IANA function expires September 30, 2012, following NTIA’s rejection of ICANN’s first submission for a new contract, adding that any future bid must address, “the need for structural separation of policy making from implementation, a robust company wide conflict of interest policy, provisions reflecting heightened respect for local country laws, and a series of consultation and reporting requirements to increase transparency and accountability to the international community.”
To put it mildly, the 1990’s were exciting days for the Internet. I know because I was there, sitting in hearings at the World Intellectual Property Organization (WIPO) in Geneva, Switzerland on behalf of my client, the Coalition for Advertising Supported Information and Entertainment – CASIE – at a time when advertisers were just beginning to look at the Web as a possible commercial media. CASIE was founded by the Association of National Advertisers (ANA) and the American Association of Advertising Agencies (4A’s). CASIE was actually the first commercial group to suggest privacy policies for the Internet in 1998 and, working with the then Internet Advertising Bureau, to establish the initial standards for banner ads. Much of the work of CASIE eventually transferred to the 4A’s and the Internet Advertising Bureau became the Interactive Advertising Bureau (IAB). The two organizations to this day are the primary authorities for technical advertising standards on the Web.
WIPO convened the world to discuss Internet governance and, believe it or not, the addition of as many as 200 more top level domains to compete with what was then only a handful. What was perhaps the most amazing part of the meetings in Geneva, however, was the fact that most of those who participated in the debate didn’t have email addresses, let alone anything remotely resembling a website. But they sure were obsessed with the United States’ control over the new-fangled thing called the Internet or World Wide Web (terms often used interchangeably even though they are distinct – the World Wide Web is only a part of the Internet).
The proceedings in Geneva didn’t resolve much. Such hearings never do. But they did introduce the idea of more TLDs as one option and search engines as another to address what was perceived as a dwindling number of available addresses. And as we all now know, search engines eventually became the solution; we didn’t run out of addresses; the need for more TLDs became unnecessary; and TLDs that were introduced over the ensuing 15 years were mostly commercial failures. But no one should expect ICANN to learn any lessons from history.
Following the meetings in Geneva, I testified at a hearing in November 1997 (prior to ICANN’s formation) before the House of Representatives, Subcommittee on Courts and Intellectual Property, Committee on the Judiciary. In the words of Rep. Howard Coble, Chair of the Committee, the hearing’s focus was “oversight concerning Internet domain name trademark protection.” Also testifying were Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, Gabriel Batista, CEO of Network Solutions, Michael Kirk, Executive Director of the American Intellectual Property Law Association (AIPLA), David Stimson, President of the International Trademark Association (INTA), and John Wood (not related to me), Senior Internet Consultant for Prince, plc, a London based consulting firm.
I will spare readers the tedious testimony, including most of mine. Suffice to say it was a robust discussion of whether new TLDs should be introduced, how search engines or directories could help, what needed to be done about cybersquatting and intellectual property infringement, how the DNS should be administered, and what was needed to be certain the Web became a viable marketplace that properly balanced the rights of brands and domain name owners.
I think my opening comments best summarize the concerns of brand owners in 1997.
I testified in part, “Recently, a commentator summed up the Internet in a simple phrase that, for the first time in history, boundaries have no relevance. … With that demise of the traditional boundaries, however, we [face] some new opportunities and some new dangers in the subject matter of this committee’s hearings. … For the Internet to become the commercial vehicle that people envision today, it is going to need the support of the global brand and regional brand owners. … Without it, [the Internet] is simply not going to become a viable commercial medium. And also, I think it is safe to say that the United States or any foreign government is not ready to pay the costs of the Internet on a continuing basis either. So that is why it is so important that the commercial sector be listened to on this issue.”
Flash forward to 2012 and we see that all the problems of 1997 remain and are, indeed, worse. Cybersquatting continues to be rampant and brands now spend millions policing their intellectual property rights in what ought to be called the “World Wide Wild Web.” Moreover, fears not appreciated in 1997 now threaten our personal and national security. In short, over the past 15 years, the Internet has not become more secure as mandated by President Clinton when he took the first step to privatization. It’s become worse and in many ways, broken. It needs to be fixed before we make it even more complicated through ill-advised and unnecessary ventures like ICANN’s new TLD plans.
But why are Presidents Clinton, Bush, and Obama to blame? Why do I believe Congress failed so miserably with oversight of the DNS and ICANN?
When the first contract was granted to ICANN by the Department of Commerce during the Clinton Administration, it had some teeth and represented a true arms length transaction. It contained checks and balances yet at the same time represented an unprecedented willingness by the United States to be a truly global citizen and open the DNS to a unique governance system described as a “bottom up, consensus driven, democratic” process. Over the years, however, ICANN became more and more powerful in its relationship with the Department of Commerce, and while the United States still controls the authoritative root server – its last vestige of control – the DOC’s oversight of ICANN has devolved from a true contract into the so-called “Affirmation of Commitments”, a document largely void of meaningful supervisory authority. Indeed, when the Department of Commerce was warned by some in Congress not to dilute the agreement with ICANN, the advice was ignored. Presidents Clinton, Bush and Obama did nothing to stop the changes. Congress expressed concerns but took no legislative actions to control the problem.
Today, the United States is again under pressure to free the Internet of its control, this time being urged to turn the authoritative root server and IANA function over to the International Telecommunications Union (ITU), a part of the United Nations. The initiative, backed by Russia, China, and Iran, will be the centerpiece of debate at the ITU conference in Dubai this December. Many commentators agree that the real motivation of the trio of backers is to wrest control of the DNS so that restraints on free speech can be implemented, something the United States will never do. At the same time, no one believes the United States will relinquish control of the authoritative root server when we now face the greatest national security threat in history – cyberterrorism. Indeed, just this past week, the House Energy and Commerce Committee unanimously approved a resolution aimed at preventing any efforts to hand the United Nations more power to oversee the Internet. Rep. Marsha Blackburn (R-Tenn.) wrote, “We may have our differences on domestic telecommunications policy, but having those policies decided at the international level would be the worst thing that could happen.” She added, “[O]ur national sovereignty is at risk. If the expansion of a global legal regime for communication technologies gains traction, the effects to the global economy as well as our individual liberties will be severe.” Vinton Cerf, one of the true fathers of the Internet and now with Google, cautioned that the move by the U.N. and ITU would promote “exclusion, hidden deals, potential for indiscriminate surveillance and tight centralized management.”
Amidst all this political intrigue we’re dealing with ICANN and its abysmal handling of the DNS and the introduction of potentially thousands of new TLDs. Couple that with ICANN’s increasingly cavalier attitude towards the concerns of brand owners, non-profits, law enforcement, and regulators charged with protecting consumers and it’s a recipe for disaster.
Make no mistake about it. The controversies over the ITU moves and ICANN’s TLD plans are intrically interconnected. If ICANN’s stumbles (as it already has and many believe will do so again) in flooding the Internet with TLDs controlled by Registries and Registrars all over the world, virtually all of which are motivated solely by profits at the expense of stakeholders, the fallout will feed supporters of the ITU initiative. In short, Russia, China, Iran and their friends among other suppressive regimes will assert that if the United States can’t properly oversee ICANN and assure the smooth and systematic introduction of new TLDs, why should anyone believe the United States can be entrusted with something as vital as the root server and administration of the Internet as a whole?
The blame for putting the United States and our national security at such risk falls squarely on the last three Administrations and Congress who collectively stood by for the past two decades and did virtually nothing to assure that the many stakeholders dependent upon the Internet and ICANN would be protected though proper oversight. Instead, our elected officials allowed ICANN to become the uncontrolled (and very rich) overseer it is today.
So what must be done now? It’s simple. The United States must make sure ICANN does not stumble or fail. The Department of Commerce must step in and force ICANN to adopt the controls brands, law enforcement, consumer advocates, IGO’s, NGO’s and others are demanding and ICANN is ignoring. The Administration and the DOC cannot continue to allow ICANN to avoid decisions by relegating stakeholder fears to debates among ICANN’s innumerable committees and coalitions (precisely what is happening in Prague). The DOC has the power of meaningful oversight through its control of the authoritative root server and the IANA function. The DOC can refuse to allow the addition of any new TLDs until ICANN properly responds to stakeholder concerns. The DOC must assure the Internet community that any change in the DNS will proceed carefully and slowly, motivated by preserving stakeholder confidence and not falling prey to a confidence game.
If the Obama Administration and Congress continue to sit back and pontificate rather than act, in October when ICANN meets again in Toronto, we will be victims of another round of debates and deliberations without meaningful progress, putting the great experiment of Internet governance in further peril. Through U.S. malfeasance, what was a wonderful Arab Spring when the freedom offered by the Internet rang for the world to hear, may well become an Internet Winter in Dubai.
And whose fault will that be?
We Expert Doug Wood