Internet Governance: Is the Internet Really Free of US Control?

On 30 September 2016, the United States (US) government relinquished its authority to make changes to the root zone file, which is a kind of a live telephone directory for the internet. This file, and essential functions pertaining to it, is managed by a US-based non-profit, the Internet Corporation for Assigned Names and Numbers (ICANN), hitherto under the direct oversight of the US government.

It is this internet’s root file that tells us where to find any internet server that we want to communicate with. For anyone trying to reach epw.in, this file allows one to find the internet protocol number of .in server, which in turn leads the user to epw.in. It is not that every communication on the internet has to pass through, or even check with, one central server that contains this root zone file. ICANN’s authoritative root zone file is republished by 13 root server operators (10 of them in the US, and one each in Sweden, Netherlands, and Japan). These root servers are then replicated in many captive servers across the world.

The internet service providers (ISPs) worldwide routinely check the address and routing information from these servers to establish internet communication for us. This information remains cached at every level for a few days. This means that if a change was to be made to the root zone file by ICANN/US which, for whatever reason, is not followed through by one or more ISPs, it would not immediately collapse the communication system. It will begin to degrade slowly because of conflicting routing information, depending on how many root server operators and large ISPs are following the old root file entries versus the new changes. Since the domain name system has been secured over the last few years, and security certificate of authenticity is issued at each level, such degradation arising from what can be called as a split root (with a set of ISPs not following the ICANN based root) is now expected to be rather more rapid and disastrous.

With not only the global economy but all sectors of the society greatly dependent on the internet, it is obvious that the cost of any such disruption of global internet communication is increasingly prohibitive for any country, or group of ISPs or businesses, to bear. In the circumstances, while the whole domain name system (DNS) under ICANN is touted as completely voluntary for ISPs to follow or not, it is a de facto compulsion. The root zone file can therefore be considered as an essential global public infrastructure, increasingly necessary to sustain practically every social system in every part of the world. Little surprise then that the rest of the world has been unhappy with the US government’s unilateral control over this essential infrastructure.

While creating ICANN in 1998, the US government had promised to eventually pass to it the full authority and responsibility for all DNS functions, it however stuck to its root signing authority all these years, claiming it as its “historic role.” This was justified by positing the US as the global defender of “internet freedom” against many other countries (basically, the developing ones) being out to control the internet for statist purposes. The Snowden revelations in 2013 exposed the US’s hypocrisy, and shook its moral high ground. It was largely to mend its dented image that, within a year, the US declared its decision to extricate itself from direct authority over the internet root file. This finally came about on 30 September 2016. Henceforth, ICANN will independently control the root file, and take all decisions regarding it, without any direct US oversight.

The most visible and prominent public role of ICANN is of allocating top-level domain names like “.com” and “.net.” It also allocates country domain titles like “.in” and “.cn,” as per preset policies. With digital space becoming a key aspect of economic, social and cultural existence, its naming has huge value. This value will rise exponentially as digitally identifiable and navigable names become the key signifiers and connectors in our society. As can be expected, there is huge competition for and contestations around allocations of these extremely valuable digital signifiers (“.web” recently got auctioned for $135 million).

The concerns are not just economic, but also social and cultural respectively; for instance, in terms of how a sensitive social sector like health may look at digital name allocations in its domain, and how nations and communities have cultural/political associations with different names (for example, who should get “.amazon:” the US company, or the geographic region?). While it has entirely been up to ICANN to allocate these domain names, the root file change authorising role of the US government, which is essential for giving operational meaning to any new domain name allocation, had given the US an oversight role over ICANN’s name allocation functions. This lever was implicitly invoked when the Republican government in the US objected to allocation of “.xxx” domain name for porn sites, though the allocation finally went through.

The US government has never used its power to actually nullify any ICANN decision on domain names. However, the very existence of an oversight authority, and its known predilections, always exercises significant influence. Now there remains no effective oversight over these very important powers of ICANN. A new oversight mechanism, largely made up of groups internal to the “ICANN system,” has been instituted, which is too weak to be effective, as will be discussed presently.

The US decision represents a significant step towards globalisation of internet’s logical/addressing infrastructure which had been under its control so far. The world is glad for it, and rightly celebrating. However, at the same time it is important to prick the balloon of what is too exaggerated and boisterous a claim of this critical infrastructure becoming entirely, or even largely, free of the US government’s control. This is not true, because all critical controls have shifted to a US non-profit, which remains fully subject not only to the whims of the judicial and legislative branches of the US government, but also of many of its executive agencies. It is important to recognise how the US state continues to exercise a very strong control over this critical global infrastructure, which is inappropriate and unacceptable. Also, it must be examined whether the new configuration of ICANN is adequate to the tasks that involve important global public interest implications? Or, whether, now with even the direct oversight of the US government gone, a largely independent and unchecked private organisation can run amok towards self-aggrandisement, and thus compromise global public interest?

The US State Retains Control

ICANN remains a US non-profit, with no special jurisdictional immunities. Any lower court in the US can order ICANN to change its policy decisions, as per its interpretation of the US law and US public interest. Some such decision is imminent sooner than later, especially now with thousands of new top-level domains being allocated for various kinds of businesses and other activities. Recently, a group of people materially affected by what they considered as Iran’s role in supporting terrorism went to a US court seeking forfeiture of .ir country domain name. Although the court decided against, its very exercise of jurisdiction in the matter leaves open the possibility that another court in another case may think differently. ICANN’s delegation of “.xxx” has been challenged in a US court, for allegedly violating competition law. What if the court agrees with the petitioner? Similar things are possible with regard to thousands of other top-level domain names.

The moment ICANN is served any such adverse judgment, it has no option other than to comply, at least after exhausting appeal options. This means making the necessary changes in domain name allocation, which is supposed to be a global governance function. While the US courts enforce existing laws, the US legislature can at any time make new laws and ICANN is obliged to follow them. The global governance role, status, and legitimacy of ICANN stands on thin ice.

There are many executive agencies of the US that can force ICANN’s hand in pursuance of their respective mandates. The Office of Foreign Assets Control (OFAC), for instance, can prohibit or limit ICANN’s dealings with any country under its proscribed list. What happens then to that country’s domain name, and those of businesses located there? The fact that till now the OFAC has looked the other way in terms of ICANN’s work is no guarantee that it will continue to do so. With numerous US agencies having mandates in areas that the global internet impacts, the list and possibilities of such jurisdictional incursions remain limitless. The recent cessation of the direct role of US government vis-à-vis ICANN does nothing to prevent them.

The US government (courts as well as its executive agencies) has been extremely active in seizing domain names to globally enforce its high intellectual property standards—even in cases when the concerned business’s primary activity was outside the US. Until now, with most businesses registered under “.com,” it went to “.com” owners to obtain such seizures. But for any global business that obtains one of the top level domains now being extensively sold by ICANN, such a domain seizure can only be effected by ICANN itself. When US courts and other agencies have easily and often directed “.com” owners to seize domain names, there is no reason they will not do so to ICANN, in situations where ICANN alone can effect it. To simply hope that it will not do so, as most ICANN enthusiasts do, is vain and self-deceptive.

Let us take the hypothetical case of an Indian generic drugs company doing global business, but not in the US. With many, if not most, big global businesses expected to take up private top level domain names in the near future, let us say that this company, Generic Drugs, takes up a new top level domain, “.genericdrugs”. This very act will put it under constraints to not step on the toes of the US intellectual property law, even when its entire global business is elsewhere. It risks seizure of its domain name by the US government, as has happened to numerous global companies for similar reasons. This is patently very problematic, especially since in this case it will involve an action exercised through the agency of ICANN, which alone can enforce seizure of a top level domain. In this manner, as businesses and other social activities inevitably become more and more digital space-centric, the US jurisdiction over ICANN enables it to enforce its laws and policy priorities over the entire world.

It could therefore be said that that while a considerable step back has been taken in terms of direct US power over ICANN, very significant US controls remain in place. These are sufficient to enable the US state to get its way with global governance of digital space naming and addressing whenever and as it wishes. This governance, and various powers and influences over it, are set to become so very important as every business and social sector becomes digital-centric that we are in fact headed towards more rather than less problematic times as far as the US’s unilateral power in this area is concerned. This small step back by the US may just be a ploy to entrench a continued control of this vital area, by making it look prima facie less illegitimate.

Need for Effective Public Oversight

The second issue goes beyond the US’s continued illegitimate power in this area. It is about ICANN as an organisation with a significant global public policy role now being rendered practically without any public oversight at all. While it employed it to press its geopolitical interests, the oversight by US was at least helpful to check ICANN on issues of commercial excesses and such other forms of self-aggrandisement. A few years ago when ICANN allowed owners of .com to raise domain name price, the US government stepped in to stop it. No such checks remain now. While a new so-called “community oversight” mechanism has been instituted, it consists of the same narrow insider group of actors and interests that selects the ICANN board in the first place. This arrangement provides no effective check because ICANN’s aggrandisements always mean some powers and other benefits to all these groups as well. Also, ICANN continues to be dominated by businesses, largely US-based ones, and handing over such important global governance functions to a business dominated body with no effective oversight at all is quite scary.

In the new situation, ICANN would be unbridled in working for the best interests of the involved businesses and for its own earnings that can variously be spent on individuals and groups that closely constitute the “ICANN system.” This means unlimited benefits not only for those businesses that work in the domain name space, and those who would like to corner key digital signifiers for exclusive private use (like Amazon did for “.book”), but also to big business in different sectors.

There are important top-level domains that signify important social sectors, like health/pharma, transport, insurance, etc. ICANN allows sectoral industry groups to take up such top-level domains, and restrict their use as per specified policies that ICANN may also participate in forming. Pharmacy, for instance, is taken by a US-based pharma industry group, that has set up its exclusion–inclusion principles. It is quite possible that such principles, now, or in the future, could exclude legitimate generic pharma companies from developing countries in the name of preventing counterfeits, but really to push the high intellectual property standards of the US on the whole world.

ICANN, along with big business interests, therefore, can get cast in the very inappropriate role of a sector regulator, just by controlling the policies for allocation of domains names under specific sector name based top level domains. One can easily see that such powers, of squatting over key digital nodes and names, are going to become of outstanding importance as digitisation of our societies intensifies.

The struggle by the Supreme Court of India to rein in the Board of Control for Cricket in India (BCCI) provides an apt example of how an agency exercising a public or quasi-public function can go renegade if freed from any public interest oversight. The BCCI uses similar stakeholdership based logic and arguments as ICANN does. It has argued that it undertakes a private function, which is more like a business than governance. Managing cricket basically being a matter of well-remunerated players entertaining crowds and TV audiences ready to pay for it, the BCCI merely facilitates this largely commercial process. On this basis, it has argued that it bears no public responsibilities and accountability, and that the Supreme Court has no right to seek explanations and try to supervise its activities. The Court disagreed and appointed an oversight body for the BCCI’s overhaul.

ICANN employs a similar logic of it basically being an intermediary for facilitating largely commercial interactions involving domain industry players, other businesses and the ordinary domain owners. An ICANN freed from all oversight is very much expected to run the same riotous route of self-aggrandisement, even corruption, as we found the BCCI on. At that time there will be a clamour for putting it under some kind of effective public interest minded oversight body. It is better to do so right away, rather than wait for calamitous circumstances forcing our hand.

The ICANN model is a concern not just because of privatisation of governance of internet’s key global resources. This model is widely considered by adherents of neo-liberalism as a forerunner to similar privatisation of governance in other sectors as well. ICANN is presented as an exemplary and pioneering neo-liberal governance model. In such a model, basically, big business-led (largely co-opted) “stakeholder” groups hold the final decision-making powers, towards entrenching dominant power structures.

Governance is sought to be completely decoupled from representative democratic systems, taking a post-democratic form. The intention is to get our societies organised under the leadership of large corporations, not only in matters economic, but for all sectors. By allocating key generic names based digital signifiers like “.book,” “.baby,” “.office,” “.hotel,” and “.beauty” for exclusive private use, ICANN helps large corporations divide the digital socio-economic space amongst themselves. These names belong to the society’s commons, and domain registration under them should have been allowed to all, and not just privately to mega corporations, which for the above examples, respectively, are Amazon, Johnson and Johnson, Microsoft. Booking.com, and L’Oreal.

But then a big business-led governance model can hardly be expected to do anything other than help big businesses consolidate their power over our societies. ICANN’s chief executive officer, who steered the transition process and has now stepped down to join (quite aptly, to take the “plan” forward) the World Economic Forum, says, “we need many little ICANNs.”

Global Public Oversight for ICANN

The most appropriate way forward is to incorporate ICANN under international law, which has to be in the form of a treaty (or some such agreement). ICANN can continue to be in the US, but with jurisdictional immunities as available to other global governance bodies like those of the UN. While such an agreement can only be negotiated by governments, it should specifically, and structurally, constrain ad hoc statist-minded interferences by governments. Current “multistakeholder” structure and working methods of ICANN can remain protected as such in this agreement, other than the specific new features mentioned here.

Larger public policy principles should be laid out for ICANN, as was directed by the World Summit on the Information Society in 2005, and compliance to them should be ensured by an oversight board, which can be constituted in a global manner without it being intergovernmental. It can possibly contain a member each from 10 or so of the key globally reputed professional bodies like those of health professionals, journalists, legal experts, educationalists, scientists, librarians, and so on (each of these sectors being crucially served by the internet). The whole system should further be subject to judicial oversight that can be done by instituting a special digital bench of the International Court of Justice (which can be mandated by the mentioned treaty).

It is vital to protect the global infrastructure of free speech and unconstrained association from statist controls, and thus one has to be very careful about the governance structures around the global internet. But that does not mean that the internet can be kept away from the rule of law, which alone can ensure global public interest. How such a rule is appropriately constituted is our challenge. But in default of it, dominant global political (US government) and business (transnational corporations) interests would continue to consolidate their powers. And they use contrivances like exaggerated claims about how the current transition of root signing powers from the US to ICANN means that the internet is finally free of US control to cover their designs and exercise of illegitimate powers.

It is important that governments, intellectuals, and the public of developing countries do not fall prey to such misleading claims and take steps to ensure that the global internet is governed in an equitable and just manner. It is for developing countries’ leaders like India to come up with alternative governance forms and proposals, and build global support for them.