Thought Piece by Stephen Heins
[Frankly, I can’t see how making the Internet into another United Nations, especially given the fact only 160 nations support “open access,” unedited and unpolitical, makes any sense. It would mean that 40 or so oppressive governments will prevent their country’s people from access to the global community and its robust, worldly points of view. I hope that the White House will reconsider this initiative. Steve]
Last Call for the Open Internet
A two-year effort to find an alternative to U.S. oversight of Icann has produced only uncertainty.
Updated Aug. 14, 2016 5:41 p.m. ET | By Gordon Crovitz
“The survival of the internet as we know it is at risk,” declares this year’s Republican platform. President Obama “has launched a campaign . . . to subjugate it to agents of government. . . . He has unilaterally announced America’s abandonment of the international internet by surrendering U.S. control. . . . He threw the internet to the wolves, and they—Russia, China, Iran, and others—are ready to devour it.”
Congress used the power of the purse for the past two years to block the White House from spending resources to carry out its plan to end U.S. protection of the internet, but the Obama administration plans to do so immediately after midnight on Sept. 30, when the spending ban expires.
The U.S. has long protected the open internet through its contract with the Internet Corporation for Assigned Names and Numbers, or Icann, ensuring that the root zone of the internet functions smoothly, without meddling by authoritarian regimes or abuses by Icann, which has monopoly control over highly lucrative web domains such as .com.
A two-year effort to find an alternative to U.S. oversight has produced only uncertainty—and a growing list of challenges by Congress and companies if the administration carries out its plan.
In June, companies including Disney, 21st Century Fox and NBC Universal wrote congressional leaders warning that “significant questions remain regarding Icann’s current readiness” to operate without U.S. oversight. They gave as an example a top-level country domain from a “failed state” being “redelegated to an entity affiliated with a sophisticated piracy and counterfeit organization, a multinational criminal enterprise, or even a terrorist organization.” U.S. oversight to prevent such an outcome “is to be replaced with—nothing.”
Last month Assistant Commerce Secretary Lawrence Strickling tried to rebut what he called “hyperventilating hyperbole” about the risks. In the process he only confirmed the worst fears of critics.
Mr. Strickling called it a “false claim” that Icann could be moved from its U.S. legal jurisdiction, which would undermine the plan Icann submitted for how it would be held accountable as a California-based corporation. He’s wrong: Legal jurisdiction is explicitly reserved for Icann’s “Phase Two” transition plan to be decided only after the U.S. gives up control—and leverage. Ending U.S. legal jurisdiction has been the top goal for authoritarian regimes in recent Icann meetings.
He also said: “In the last couple of weeks, I have heard new concerns about the possible antitrust liability of a post-transition Icann.” They aren’t new. Courts have approved Icann’s monopoly control over the root zone only because its contract with the Commerce Department exempts it from antitrust challenge. Once the contract ends, would-be competitors could sue for a share of Icann’s hundreds of millions of dollars in annual revenues. A single root zone might not survive.
Icann has a long history of abusing its monopoly power. Just this month Dot Registry LLC won a judgment against the organization for denying it new domains. An independent panel ruled Icann was “simply not credible” and had “failed to fulfill its transparency obligations.”
Last week two dozen advocacy groups, including Tech Freedom and Heritage Action, urged Congress to sue Mr. Obama if he ends the Icann contract on the ground that federal personnel and paid outside contractors worked on the plan for two years despite the spending ban.
The advocacy groups noted Mr. Obama does not have the authority on his own to transfer Icann, whose domain monopoly is worth billions of dollars, because the Constitution says Congress must approve transfers of U.S. property. Their letter, whose signatories include the first chairman of Icann, Esther Dyson, warns that the “fragile” multistakeholder model is endangered without a solid plan replacing U.S. oversight.
Republican Sens. Ted Cruz and Mike Lee and Rep. Sean Duffy last week demanded that the Justice Department’s antitrust division investigate Icann’s recent renewal of the .com registry agreement with Verisign two years ahead of schedule. That means there can be no review of the prices monopolist Verisign charges companies for .com web addresses until 2024. This concern is exacerbated by Versign’s recent record payment to Icann of $135 million for the new .web domain.
The internet was not broken when Mr. Obama decided to fix it by ending U.S. protection. The administration naively thought crafting an alternative to U.S. oversight, which it dismissed as “largely clerical,” would be easy. By now it’s clear Mr. Obama’s solution to the nonproblem of U.S. protection is too half-baked for anyone who cares about the free and open internet.