August 29, 2016
An important story this morning in the Wall Street Journal points to a troubling problem:
“When the Obama administration announced its plan to give up U.S. protection of the internet, it promised the United Nations would never take control. But because of the administration’s naiveté or arrogance, U.N. control is the likely result if the U.S. gives up internet stewardship as planned at midnight on Sept. 30.”
The piece in the journal continues:
“On Friday Americans for Limited Government received a response to its Freedom of Information Act request for “all records relating to legal and policy analysis . . . concerning antitrust issues for the Internet Corporation for Assigned Names and Numbers [Icann]” if the U.S. gives up oversight. The administration replied it had “conducted a thorough search for responsive records within its possession and control and found no records responsive to your request.”
It’s shocking the administration admits it has no plan for how Icann retains its antitrust exemption. The reason Icann can operate the entire World Wide Web root zone is that it has the status of a legal monopolist, stemming from its contract with the Commerce Department that makes Icann an “instrumentality” of government.
Antitrust rules don’t apply to governments or organizations operating under government control. In a 1999 case, the Second U.S. Circuit Court of Appeals upheld the monopoly on internet domains because the Commerce Department had set “explicit terms” of the contract relating to the “government’s policies regarding the proper administration” of the domain system.
Without the U.S. contract, Icann would seek to be overseen by another governmental group so as to keep its antitrust exemption. Authoritarian regimes have already proposed Icann become part of the U.N. to make it easier for them to censor the internet globally.”
The Heritage Foundation has been following this issue for some time now. Here are six key points you need to know on this issue from Heritage expert Brett Schafer:
“When the Obama administration announced in March 2014 that it intended to end the historical U.S. contractual oversight relationship with ICANN it originally expected the transition to occur in 2015. However, the details of the transition proved too complicated and the contract had to be extended to September 2016 while numerous details were ironed out.
Although that extension is about to end, there are a number of major concerns that remain unaddressed and reforms that remain incomplete.
The WSJ article raises the very real prospect that ICANN will be more vulnerable to anti-trust lawsuits after the transition, which could lead to seek the immunities and protections available through UN affiliation. This would give governments far more authority over the Internet, which U.S. officials have acknowledged would be a terrible outcome and could threaten the freedom and innovation that have characterized the Internet and allowed it to flourish.
However, there are a number of other concerns as well, including the fact that important transparency and accountability measures will not be completed until next summer, that governments will have more authority in ICANN after the transition, and we don’t know if the multi-stakeholder community is capable of governing ICANN and assuming the U.S. oversight role.
In addition, as mentioned in the WSJ, ICANN has recently been accused of cavalierly ignoring its bylaws and procedures. If ICANN cannot be trusted to follow the rules with U.S. oversight in place and the transition on the line, how much more abusive could the organization be once it is autonomous? We could be dealing with another FIFA, but involving the Internet rather than soccer.
The Obama administration repeatedly assured Congress and the American people that it was more important to get the transition right than to get it done on time. Unfortunately, the Obama administration has allowed political concerns to trump prudence and U.S. officials have downplayed and dismissed the many legitimate concerns that people have raised about the transition because it wants the transition to occur before it leaves office.”