ABHIMANYU SINGHSEMESTER VI

NUSRL, RANCHI

ICANN & ITS ROLE IN CONTROLLING DOMAIN NAME IN TODAY’S WORLD

HISTORY OF ICANN

Before the establishment of ICANN, the Government of United States controlled the domain name system of the Internet. In September 1969, academics sent the first message over the ARPANET, a military network that was the precursor of today's internet. A legacy of those efforts is that the American government continues to control the internet's underlying technology—notably the system of allocating addresses. This is about to change, albeit slightly. For the past decade America has delegated some of its authority over the internet to a non-profit organization called the Internet Corporation for Assigned Names and Numbers (ICANN)—an arrangement other countries have complained about, both because they have little say in it and because ICANN's management has occasionally proved erratic. ICANN's latest mandate was due to expire on September 30th, 2009. But a new accord is planned to come into effect, whereby America will pass some of its authority over ICANN to the “internet community” of businesses, individual users and other governments.

HISTORY OF ICANN

The US government took the initiative for the formation of ICANN and the privatization of technical management functions of the Internet. ICANN was founded as a non profit organization under the California Nonprofit Public Benefit Corporation Law in September 18, 1998. It came into existence through a Memorandum of Understanding with the U.S. Department of Commerce. One of ICANN’s core duties is to manage the Internet Assigned Names Authority (IANA), which allocates IP addresses to various regional assigning bodies. In some sense, ICANN was and remains a revolutionary experiment in governance. ICANN represents an innovative new form of governance involving a mix of power between business, governments and civil society. As a legal entity, ICANN is a California nonprofit corporation, accountable only loosely to the California Attorney General, state corporation regulations as well as federal rules regarding 501(c)(3) charitable organizations.

Civil Society Participation in ICANN

The original mandate for ICANN came from the United States government, spanning the presidential administrations of both Bill Clinton and George W. Bush. On January 30, 1998, the National Telecommunications and Information Administration (NTIA), an agency of the US Department of Commerce, issued for comment, "A Proposal to Improve the Technical Management of Internet Names and Addresses." The proposed rule making, or Green Paper as it is popularly called, was published in the Federal Register on February 20, 1998, providing opportunity for public comment. NTIA received more than 650 comments as of March 23, 1998, when the comment period closed.

LEGITIMACY OF ICANN

ICANN continues to operate under contract with the US government, despite its initial pledge to completely transition IANA functions to the private sector, although a limited transition has occurred including the 2009 Affirmation of Commitments (AoC) between ICANN and the US government. The AoC affirms key commitments between the US Department of Commerce and ICANN to ensure that ICANN make its decisions in an accountable and transparent manner that promotes the global public interest. The AoC further affirms the US government’s commitment to a private sector led, multi-stakeholder driven bottom-up policy development model for the Domain Name System (DNS) coordination. ICANN occupies a unique role in that it manages a global public resource (the internet’s domain name addressing space), but it shares this responsibility between businesses, governments, and civil society participants from many nations.

BEGINNING OF CONTROVERSY

Previous agreements had maintained close American oversight over ICANN and imposed detailed reforms, but the latest document, called an “affirmation of commitments”, is only four pages long. It gives ICANN the autonomy to manage its own affairs. Whereas prior agreements had to be renewed every few years, the new one has no fixed term.

The changes at ICANN come at a time when the number of addresses is set to expand dramatically. In 2010, ICANN planned to allow the creation of many more domains. There were then 21 generic ones in addition to the 280 country suffixes (such as .uk for Britain). ICANN also intends to authorize domain names in other scripts, which will allow entire web addresses to be written in languages such as Chinese and Arabic. All these are still in process.

BEGINNING OF CONTROVERSY

All this is controversial. Firms that have already spent a fortune to protect their brands online fear that the expansion will create a huge legal quagmire. Some American politicians are backing calls from trademark holders to call it off. Yet the firms that register new addresses support new domains. There are nearly 200m internet addresses in use (see chart), which are thought to generate more than $2.5 billion a year in renewal fees. New domains will add to that.

The new set-up at ICANN will not placate countries such as China, Russia and Iran that want America to relinquish control entirely. However ICANN runs itself, it cannot alter the basic piping of the internet without America's approval under another agreement that lasts until 2011. Even then, that is unlikely to change

INTERNET HEGEMONY AND THE DIGITAL DIVIDE

A squabble over who controls the internet had threatened to overshadow the World Summit on the Information Society in Tunisia. But a “compromise” deal was reached in Tunisia in 2005 just before the meeting opened, under which America will retain its hegemony for the time being.  Nothing has done as much to hasten the spread around the world of fact, fiction or rumor as the internet. The rapid dissemination of information from a wide variety of sources, from reputable news organizations to lone bloggers, has fostered an openness unforeseen when the internet was created as part of an American military-research project in the 1960s. And the web is widely accepted as a key component of the technological revolution that has boosted global productivity and wealth.

CONTROVERSY OVER ICANN

Many countries had wanted to relieve America of its unilateral role in the governance of the internet and hand power to a new body under the auspices of the UN's International Telecommunication Union. Brazil, China and Saudi Arabia had called for a new intergovernmental forum with real powers and a policy-making mechanism for the internet. America had contended that this should be little more than a talking shop, devoid of formal powers, since existing mechanisms to co-ordinate the underlying infrastructure of the internet's addressing system are sufficient. The American point carried some weight. Although nominally under the authority of America's Department Of Commerce, ICANN's directors hail from all over the world, and it already has a governmental advisory committee (though this is largely toothless). Technical issues are thrashed out in the open and America's government has refrained from direct intervention. The private-sector solution may not be perfect, but it is at least workable.

CONTROVERSY OVER ICANN

The United States has long argued that handing control of the internet to the UN or a separate intergovernmental agency would invite slow-witted bureaucratic meddling, which could hinder the internet's development. In September, the European Union surprisingly withdrew its support for the current arrangements and proposed a governmental approach intended as a compromise between those favoring UN oversight and the Americans. But those countries hoping to reduce America's role in running the web will doubtless be disappointed by the compromise that has been adopted. From next year an international forum will convene to discuss internet issues, but it will have no binding powers.

This is something of a relief. Many of the countries that have called loudest for America to give up its role in the running of the internet are those that are most keen to stop their citizens accessing “undesirable” material. China, Iran, Saudi Arabia and a host of other nations are guilty of censoring the content available to web users, their aim being less to protect the population from depraved content than to deter nascent democratic movements.

UNIFORM DOMAIN NAME DISPUTE RESOLUTION POLICY

ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP) is one of the most important policies that ICANN has adopted because it impacts the rights of all domain name registrants in the event of a dispute over a domain name. Adopted by the ICANN board in October 1999, the UDRP provides a uniform set of global rules and procedures for the resolution of disputes involving domain names and trademarks. After more than ten years in practice, the UDRP has been widely criticized for policies that favor trademark interests over registrants with other legitimate interests.

Numerous studies have shown the UDRP to favor trademark interests because it allows the complainant to select the dispute resolution provider. Other procedural rules that favor trademark complainants are short response time, default rules, selection and composition of panels, and insufficient time to get a case to a court. The UDRP has faced further criticism for its inability to adequately protect freedom of expression, noncommercial use and other legitimate fair uses in the face of trademark claims.

Politics of gTLD’s

Recently, ICANN, the body that is responsible for managing the domain name system of the internet, approved what it refers to as "one of the biggest changes ever to the Internet's Domain Name System", under which, for the first time ever, ICANN is giving companies the opportunity to create and control new top level domain names.

Internet domain names consist of multiple components, including a top level domain name, then a second level domain name, and, in some cases, lower level domain names. Take, for example, an American law school's website, www.wcl.american.edu. The top level domain name is the suffix, ".edu". The second level domain name is "american". The lower level domain is "wcl".

Politics of gTLD

Until now when a business wanted to establish a web address, it would do so only by acquiring a second level domain name because businesses did not have the opportunity to claim a unique gTLD. The major impact of ICANN's recent action is that businesses and other organisations will now have the ability to claim a customised gTLD. Instead of using a second level domain name under a gTLD such as ".com", a company can use its company name as the gTLD itself, such as ".google". Or, it could acquire a gTLD in a generic term, such as ".search".

Everyone seems to agree that this will be a historic expansion of internet domain extensions. The move is the biggest change to the internet's domain naming system since ".com" was introduced 26 years ago. This first development opened up the formerly academic and military internet system to commercial use. 

Economics of gTLD

CANN'S new gTLD programme will likely expand the current name space from our current 21 gTLDs to around 1,400 gTLDs. On June 13, 2012, it was revealed that ICANN received 1,931 applications for new gTLDs. ICANN had estimated that it would receive 250-500 applications. The number of applications is remarkable when one considers the application fee of $185,000 and the annual fees of $25,000 per gTLD.

Do the math: ICANN received $357,235,000 in application fees alone.

Consequence of gTLD

There will likely be more reliance on search engines, and less direct navigation - the method of arriving at a website by typing the address directly into a browser's address bar - by internet users. Another big change will be the addition of gTLDs in non-Latin script for the first time. Of the 1,931 applications, 116 were for gTLDs in non-Latin script.

A much more significant issue is whether any generic word should be owned by a company for use as a closed registry. For example, nine companies, including Amazon, applied for .book. Amazon indicated in its application that it would operate .book as a closed registry meaning that it would not permit a market in .book second-level domains. Thus, no publisher, author, reviewer, or significantly, other e-book merchant would have access to the .book domain. Internet users seeking information about books in the .book domain would be captive to Amazon, a single company. 

Donuts Controversy!!!

Ever heard of a company called “Donuts”? It is now a business to watch as it has the distinction of having filed the most gTLD applications. It applied for 307 new gTLDS, all of them generic terms, and all for open registries whereby companies wishing to use one of Donuts' gTLDs will have to pay Donut for its use. Some of its applications include .app, .group, .delivery, .photos, .pets, .band, .wedding, .city, .news, .tickets and .email. 

This company was formed only to take advantage of the new gTLD programme. It sourced over $100m in capital. Again, do the math: Donuts spent $57m in application fees, and would owe $7.6m in annual fees to ICANN if all of its applied-for gTLDs are delegated. If successful, it may become a major internet player. 

INDIA’S STAND ON ICANN

Following outrage from India’s civil society and media, it appears the country’s government has backed away from its proposal to create a UN body to govern the internet. The controversial plan, which was made without consulting civil society, angered local stakeholders, including academics, media, and industry associations. Civil society expressed fear that a 50-member UN body, many of whom would seek to control the internet for their own political ends, would restrict the very free and dynamic nature of the internet. The proposal envisaged 50 member States chosen on the basis of equitable geographic representation” that would meet annually in Geneva as the UN Committee for Internet-Related Policies (UN-CIRP).

INDIA’S STAND ON ICANN

Rajeev Chandrasekhar, Indian parliamentarian and critic of the proposal, said: “CIRP seems like a solution in search of a problem”.

At the 4-5 October, 2012 Conference on Cyberspace in Budapest, the then Minister of State for Telecom, Sachin Pilot, indicated that India was moving away from the “control of the internet by government or inter-governmental bodies”, and moving instead towards enhanced dialogue. Pilot has now confirmed the change to Index, saying that the Indian government has now decided to “nuance” its former position. The sudden move can be explained by India’s decision to now develop its own stance, claiming that it was initially just supporting proposals made at the India, Brazil and South Africa seminar (IBSA) on Global Internet Governance in Brazil in September 2011.

INDIA’S STAND ON ICANN

The government representatives present at the IBSA seminar drafted a set of recommendations focused on institutional improvement, which pushed for the UN to establish a body “in order to prevent fragmentation of the internet, avoid disjointed policymaking, increase participation and ensure stability and smooth functioning of the internet”. The proposal was to be tabled until the IBSA Summit on 18 October 2011, but according to a Daily Mail report, Indian bureaucrats publicly discussed the proposal at the 2011 Internet Governance Forum (IGF) in Kenya, saying that the move “was criticized across the board by all countries and scared away both Brazil and South Africa.”

INDIA’S STAND ON ICANN

The report also alleges that the Indian government only consulted one NGO — IT for Change — in drafting the proposal presented in Brazil, despite repeated offers from other participants to pay for members of the country’s third sector to participate in the seminar. India’s proposed UN-CIRP was slammed for moving away from multi-stakeholderism and instead opting for government-led regulation.

Whatever the truth behind the Indian government’s motives in proposing UN-CIRP, its new and more “nuanced” position is a welcome move. It remains to be seen if India will maintain its new stance at the upcoming IGF, which will be held from 6-9 November, 2013 in Baku, Azerbaijan, or will revert back on its demand of UN-CIRP.

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