Current Developments at the Internet Corporation for Assigned Names and Numbers

The Internet Corporation for Assigned Names and Numbers (ICANN) is the entity responsible for assigning domain names on the Internet, and was established as a non-profit corporation based in California during the Clinton administration so that the Internet’s development would be coordinated by a single entity.

ICANN works “in particular to ensure the stable and secure operation of the Internet’s unique identifier systems.”[1] As part of this mission, ICANN approves Domain Name Registrars, which are organizations that register specific domain names, and assigns IP addresses, the numerical codes by which computers actually connect to each other via the Internet.

From November 25, 1998 until September 30, 2009, ICANN was overseen by the U.S. Commerce Department. The Memorandum of Understanding between the Department of Commerce and ICANN was allowed to expire, to be replaced by international, multilateral control.

There are three current and developing issues that are of particular concern relating to ICANN:

I. ICANN’s Geographical Region classifications;

II. ‘Public Morality’ Objections to New Domain Names; and

III. Objections to Terrorism Background Checks.

I. ICANN’s Geographical Region classifications

1) Under Article VI, Section 5 of its Bylaws,[2] ICANN’s 16-member Board of Directors requires that each of its five geographical regions shall have no fewer than one and no more than five members represented on the Board. The Geographical Regions are Europe; Asia/Australia/Pacific; Latin America/Caribbean islands; Africa; and North America.

2) ICANN’s Geographical Regions and the specific countries thereof are subject to review within every three-year period. These Regions do not necessarily correspond to United Nations-recognized regions.

3) On August 28, 2010, Amre Moussa, the Secretary-General of the League of Arab States, sent a letter to ICANN criticizing the body for not recognizing “the Arab region,” and cited “the operational precedent of many UN agencies” as authoritative.[3]

4) On September 25, 2010, the ICANN Board of Directors approved the following resolution: “The definition of Continent or UN Regions in the Guidebook should be expanded to include UNESCO’s regional classification list which comprises: Africa, Arab States, Asia and the Pacific, Europe and North America, Latin America and the Caribbean.”[4]

5) Presently, the expanded definition of “Geographic Regions” only applies to the development of new Generic Top Level Domains (gTLDs). The core gTLDs are .com, .net, .info, and .org, while there are a number of other gTLDs available such as .edu, .mil, etc.

6) Note that the new “Geographic Region” definition collapses Europe and North America into a single Region, while creating a new “Arab States” Region. The change marks a fundamental shift from what are more or less geographical regions to cultural/ethnic regions.

7) ICANN’s conference in Cartagena, Colombia included “Geographic Regions Review Workshop – Options for a Future Framework,” held from 10-11AM on December 9, 2010.[5]

8) At the workshop, a representative of the Arab League recognized the limited nature of the September 25th Resolution, but stated that, given the fact that the LAS has 22 states with the same language, culture, morals, etc., “is there also a way we can work on defining Arab region as part of ICANN regions more generally?” The workshop’s chair noted that the Arab League had submitted a formal request to that effect. An Australian delegate, John Lawrence, recommended that the Arab League establish yearly informal regional conferences in order to form a “proto-region” along the lines of recent activities by the former Soviet Union and Warsaw Pact states, to which the Chair responded that formal regions are most important for representational reasons.

9) Should the September 25th Resolution become applicable to ICANN’s Board of Directors, it would mean that the “Arab States” Region would be entitled to between one and five directorships, while the collapsed “North American and Europe” Region would have a maximum of five seats. In fact, the director of ICANN’s Nominating Committee noted at the workshop that, “This year we’ll select one individual from North America, which is 400-500 million people with fairly deep penetration of internet.”

10) Further alterations to the geographical makeup of ICANN’s Board of Directors would mean a considerable shift in power towards the Arab League, which would presumably vote as a bloc far more than preexisting Geographic Regions.

11) NOTE: in November, ICANN’s Nominating Committee selected its first-ever Middle Eastern Director, Cherine Chalaby. Chalaby holds dual citizenship to his native Egypt and the United Kingdom.[6]

12) Should the League of Arab States gain bloc voting power at ICANN, there is every indication that it will seek to replicate its effective takeover of the United Nations General Assembly, likely in conjunction with the Organization of the Islamic Conference (OIC).

13) The OIC is extremely interested in developing internet capability, and recently formed a Computer Emergency Response Team (CERT) with the following mission statement: “OIC-CERT is to provide a platform for member countries to explore and to develop collaborative initiatives and possible partnerships in matters pertaining to cyber security that shall strengthen their self reliant [sic] in the cyberspace.”[7]

14) OIC-CERT’s Steering Committee consists of the following countries: Tunisia, Malaysia, Pakistan, Nigeria, Iran, Saudi Arabia, and Egypt.[8]

15) On October 28, 2010, at OIC-CERT’s Second Annual General Meeting, OIC Secretary-General Ekmeleddin Ihsanoglu noted the following as a core mission of OIC-CERT: “In view of the phenomena of discrimination, stereotyping and defamation targeting Muslims and their religion known as ‘Islamophobia,’ we invite the OIC-CERT to use its available professional and technical resources (in line with its objectives stated in terms of reference) in order to cooperate with the ‘OIC Islamophobia Observatory’ to identify the best ways and means including technical, administrative and legal tools to combat anti-Islamic contents on the internet.”[9] This issue bears more directly on the ongoing debate regarding ‘public morality’ objections and will be considered more fully in Point 2 below.

16) One issue not directly addressed at the Geographic Region workshop is how the creation of an Arab States region would affect the African region. Nine of the Arab League’s member states are located in North Africa, and their redistribution to any Arab States region would adversely affect Africa by removing several key states, and would reduce the African region’s overall constituency by 18%, as it would go from 54 to 45 member states. At the United Nations, the African Union (UN) voting bloc consists of 53 member states, including eight of the nine Arab North African states, with the exception of Morocco, which withdrew from the AU’s predecessor in 1984 over the latter’s recognition of the “Saharawi Arab Democratic Republic (SADR) government-in-exile of the Frente Popular para la Liberacion de Saguia El-Hamra y Rio de Oro (Polisario)” as the legitimate government of Western Sahara.[10]

17) The African Group submitted an objection to ICANN’s Country Code Names Supporting Organisation (ccNSO) in November, 2007. As quoted in the Geographic Regions interim Report,[11] “There has been strong lobbying from some African countries that the present composition of the African Region should not be changed.”

II. ‘Public Morality’ Objections to New Domain Names

This is an ongoing and evolving issue that has largely taken the form of debate over whether ICANN should authorize .gay gTLDs that have been objected to by some countries for religious or cultural purposes, as well as authorizing a new gTLD for pornography sites, .xxx.[12] ICANN amended the language relating to ‘public morality’ in its last two versions of itsApplicant Guidebook, and replaced the “Morality and Public Order” category of objection with a “Limited Public Interest” Objection.[13]

More importantly, the ongoing debate over controversial websites impacts the ongoing relationship between the Governmental Advisory Council (GAC) and ICANN, and necessarily involves the power governments are to have over the Internet, including whether governments should be able to object to new gTLDs as a matter of right.[14]

As stated on its website, “The GAC’s key role is to provide advice to ICANN on issues of public policy.”[15] There is considerable tension between ICANN and the GAC generally as to how the GAC’s ‘advice’ must be implemented by ICANN, but that is a larger issue.

1) There were several workshops on the subject of new gTLDs at ICANN’s Cartagena conference, including one held by the GAC.[16] ICANN had previously created a working group to study the issue of controversial new gTLDs, known as the Recommendation 6 Cross Constituency Working Group (Rec6CCWG), and the GAC publicly commended the work of this group in its post-Cartagena Communiqué.[17] The GAC did state that it considers several matters to be outstanding, including “Procedures for the review of sensitive strings.”[18]

2) A string is defined as “a data type used in programming, such as an integer and floating point unit, but is used to represent text rather than numbers,”[19] or “any finite sequence ofcharacters (i.e., letters, numerals, symbols and punctuation marks).”[20]

3) The matter of defining “public interest” has been a recurring area of tension between governments (including that of the United States) and ICANN constituents. At ICANN’s Public Forum held in Cartagena on September 9, 2010, Steve Delbianco of NetChoice called upon ICANN to define “public interest.”As he urged, “Let’s define our core values so we can institutionalize them”[21] The Chair responded that he believe “public interest” to be defined, and if to be redefined, it will need to be done by both ICANN and the U.S. government.[22]

4) At the Public Forum, Khaled Fattal of the (Pan-Arab) Multilingual Group, whose strident objections to ICANN’s planned background checks will be considered in Part 3 below, objected to the term “blocking” website, and proposed referring to inaccessible websites as being “curtailed” instead. He further stated that in “some cultures” pornography is not considered expression, with the implication that it is therefore unprotected conduct.[23]The level of protection afforded to pornography is unimportant per se except that it offers a relatively higher profile area of contention not only between ICANN and various governments, but also between governments themselves.

5) It is debatable whether the Internet as a whole could be effectively censored, “from a technological perspective efficiently, given the volume and the constant creation and updating of the content, while at the same time allowing users to reap the benefits of the technological pace of development and its potential for commerce. Furthermore, the Internet, from a technological perspective, considers censorship as damage and merely dynamically routs around it.”[24]

6) However, there are ways for interested parties to effectively suppress content on the Internet without resorting to outright censorship in the traditional sense of the term. Preventing the development of new identifying gTLDs and/or refusing to allow the creation of certain domain names can effectively limit the reach of websites and information contained therein.

III. Objections to Terrorism Background Checks

On September 25, 2010, ICANN’s board of directors removed a reference to “terrorism” from the fourth version of its Draft Applicant Guidebook (DAG, or DAGv4), after complaints were received from several Arab individuals and organizations. Failing to retain the ability to investigate applicants for ties to terrorism would significantly hamper ICANN’s effectiveness, and could lead to a proliferation of pro-terrorist websites.

1) Until 2009, ICANN necessarily complied with applicable United States Office of Foreign Assets Control regulations regarding terrorism, and had no reason to specify such as the subject of a background check.

2) The term “terrorism” was included without any conceivably objectionable modifiers such as “Islamist.”

3) The Chairman of the (Pan Arab) Multilingual Internet Group Khaled Fattal declared that the term “terrorism” itself was objectionable because “it will be seen by millions of Muslims and Arabs as racist, prejudicial and profiling.” Fattal requested not only its removal, but an apology from ICANN.[25]

4) NOTE: The Multilingual Group’s Mission as stated on its website is in part, “To secure this Multilingual Internet, starting with the Arabic Internet on Pan Arab level.”[26] All of its actions to date have been to further an Arabic-language Internet.

5) Abdulaziz H. Al-Zoman of SaudiNIC claimed “the international community is extensibly [sic] divided on who is a terrorist and who is a freedom fighter” as reason to remove the term.[27]

6) ICANN removed the term “terrorism” from the DAG and stated that, “The term was not meant to single out or identify a group of potential applicants; rather, it was meant to provide some guidance on what could be checked and to indicate that ICANN must comply with certain laws.”[28]

7) Possibly in response to pressure from the United States government, when ICANN released its Proposed Final Version of the gTLD Applicant Guidebook (PFV)[29] on November 12, 2010, it contained a new section specifying as follows: “ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury.”[30]

8) This insertion adequately responded to complaints that insertion of the term “terrorism” without a definition was unacceptably vague by specifying a legal structure for compliance.

9) Khaled Fattal responded to the new text by alleging “that the United States’ laws and its foreign policy will be the long-standing instruments used in governing the Internet globally not only in sovereign territories but ironically in local communities’ own native languages thru IDNs.”[31]

10) Fattal’s letter ended by threatening that “it [ICANN] is about to cause the breaking of the single root of the Internet, its core value, by its own actions.” Fattal published his letter as an article on CircleID.com, with the title “The Real Threat to the Single Root of the Internet Seems to Come from ICANN Itself, of All Places.”[32]

11) Ensuring the existence of a single global Internet is a core value of ICANN, and threats to Balkanize it must be addressed at this stage of multilingual development, before emerging nations and regional blocs are able to insert political agendas into the debate.

12) Retaining a single unified Internet as free from governmental control as possible will be essential in ensuring an open exchange of information on a global scale.

Conclusion

The three specific issues considered above serve to illustrate that the Internet is at a critical stage of development during its shift from a primarily American-directed creation to a multilaterally regulated entity. The Arab League and OIC have determined technological development and the Internet itself to be high-priority areas of development, and it is likely that gaining influence and/or control over Internet infrastructure, including through ICANN, is part of the apparent OIC strategy, though it has been the Arab League that has so far taken concrete steps to gain recognition and power at ICANN.

To this point, continued American control of ICANN and its critical subsidiary, the Internet Assigned Numbers Authority (IANA),[33] have largely directed the development of the Internet. However, there is considerable pressure on the United States to cede control over IANA to ICANN when the current contract between the Department of Commerce and IANA expires on September 20, 2011,[34] including pressure emanating from the European Union, as expressed at ICANN’s meeting in Brussels held this past June.[35]

Should the United States prove to be amenable to the E.U.’s suggestions and allow the contract with IANA to expire, it would lose considerable influence over ICANN, and the power structures governing Internet expansion and evolution would shift considerably – and not necessarily solely towards a European-dominated model.

[1] According to ICANN’s About Us page, available at http://www.icann.org/en/about/

[2] Available at http://www.icann.org/en/general/bylaws.htm#VI-5

[3] The letter is available at http://www.icann.org/en/correspondence/moussa-to-beckstrom-28aug10-en.pdf

[4] Available at http://www.icann.org/en/minutes/resolutions-25sep10-en.htm

[5] Available at http://cartagena39.icann.org/node/15465

[6] Available at http://www.icann.org/en/announcements/announcement-04nov10-en.htm

[7] Available at http://www.oic-cert.org/about.html

[8] Available at http://www.oic-cert.org/mmb_listofmembers.html

[9] Available at http://www.oic-oci.org/topic_detail.asp?t_id=4497 (emphasis added)

[10] “Background Note: Morocco,” the United States Department of State, January 26, 2010. Available at http://www.state.gov/r/pa/ei/bgn/5431.htm

[11] Interim Report by the Geographic Regions Review Working Group For Consideration by the ICANN Community, November, 2010 at p. 32. Available online athttp://www.icann.org/en/topics/geographic-regions/geo-regions-interim-report-12nov10-en.pdf

[12] The decision on .xxx gTLDs has been put off until 2011. See David Murphy, “ICANN Delays .XXX Decision Until 2011,” PCMag.com, December 11, 2010. Available athttp://www.pcmag.com/article2/0,2817,2374224,00.asp

[13] See Module 3 of the redlined version of the gTLD Applicant Guidebook Proposed Final Version to compare the text. Available at http://www.icann.org/en/topics/new-gtlds/draft-rfp-redline-12nov10-en.pdf

[14] In 2001, Vint Cerf, one of the fathers of the Internet, stated that it was created “without any contemplation of national boundaries.” Quoted in Lisa Guernsey, “Welcome to the World Wide Web. Passport, Please?” The New York Times, March 15, 2001. See, however Jack Goldsmith and Tim Wu’s preface to their 2006 book, Who Controls the Internet? By the mid-2000s, “questions of Internet governance had come to be characterized by clashes among the great powers and their network ideologies.” P. viii. See also ICANN President and CEO Rod Beckstrom’s recent speech “The New Internet Nation State,” as delivered to the United Nations Department of Economic and Social Affairs on December 14, 2010, which is available at http://www.icann.org/en/presentations/beckstrom-speech-united-nations-14dec10-en.pdf

[15] Available at http://gac.icann.org/

[16] The GAC workshop took place on the first day of the Cartagena conference, and is available as an mp3 file at http://audio.icann.org/meetings/cartagena2010/gac-new-gtld-04dec10-en.mp3

[17] Cartagena Communiqué, December 9, 2010 at p. 6. Available athttp://gac.icann.org/system/files/Cartagena_Communique.pdf

[18] Cartagena Communiqué at p. 4

[19] As defined by The Tech Terms Computer Dictionary, available athttp://www.techterms.com/definition/string

[20] The Linux Information Project, available at http://www.linfo.org/string.html

[21] Available at http://audio.icann.org/meetings/cartagena2010/public-forum-2-09dec10-en.mp3 (c. 18 minutes in).

[22] See also comments/concerns by The Dynamic Coalition on Freedom of Expression and Freedom of the Media on the Internet, Internet Governance Forum, available athttp://forum.icann.org/lists/5gtld-procedures/msg00000.html andhttp://forum.icann.org/lists/5gtld-guide/msg00090.html (content of both websites is identical)

[23] Available at http://audio.icann.org/meetings/cartagena2010/public-forum-2-09dec10-en.mp3 (c. 1 hour 32 minutes in)

[24] Terry Johal, “Controlling the Internet: The use of legislation and its effectiveness in Singapore,” as presented to the 15th Biennial Conference of the Asian Studies Association of Australia in Canberra 29 June-2 July 2004. Available athttp://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN021471.pdf

[25] See New gTLD Draft Applicant Guidebook Version 4 Public Comment Summary and Analysis, November 12, 2010, at p. 82. Available at http://www.icann.org/en/topics/new-gtlds/summary-analysis-agv4-12nov10-en.pdf

[26] http://mligrp.com/10.html

[27] Available at http://forum.icann.org/lists/4gtld-guide/msg00019.html

[28]New gTLD Draft Applicant Guidebook Version 4 Public Comment Summary and Analysis, at p. 83

[29] Available at http://www.icann.org/en/topics/new-gtlds/draft-rfp-clean-12nov10-en.pdf

[30] PFV at p. 1-19

[31] Khaled Fattal, “Our public letter to ICANN on OFAC and SDN list in New gTLDs,” December 10, 2010, http://forum.icann.org/lists/5gtld-guide/msg00100.html The letter itself is available at http://forum.icann.org/lists/5gtld-guide/pdfIIMoPfVdQj.pdf

[32] Published December 10, 2010. Available athttp://www.circleid.com/posts/the_real_threat_to_the_single_root_of_the_internet_seems_to_come_from_icann/

[33] IANA “is the [technical] body responsible for coordinating some of the key elements that keep the Internet running smoothly.” http://www.iana.org/about/

[34] The multiyear contract was signed in 2006 and is available athttp://www.icann.org/en/general/iana-contract-14aug06.pdf

[35] Specifically, see Neelie Kroes, “The need for accountability in Internet governance,” as delivered on June 21, 2010. Ms. Kroes is the Vice-President of the European Commission responsible for the Digital Agenda, and the speech is available athttp://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/323