The US Department of Commerce has announced an unexpected new policy regarding the Domain Name System (DNS) and the Internet Corporation for Assigned Names and Numbers (ICANN).
In previous pronouncements, the US had indicated that the US would someday release its ultimate control over the “root” — the file that contains the master list of authorized registries and thus determines which TLDs show up on the consensus Internet and who shall have the valuable right to sell names in them. That day would come if and when ICANN fulfilled a number of conditions spelled out in a Memorandum of Understanding (MOU).
Today’s announcement says the opposite: the US plans to keep control of the root indefinitely, thus freezing the status quo. Nothing will change immediately as a result. But the timing is weird, coming as it does only a short time before the forthcoming meeting of the UN-sponsored World Summit on the Information Society (WSIS).
Five years ago, in Wrong Turn in Cyberspace, I wrote (footnote 42, reformatted slightly):
Whether and under what circumstances DoC would turn over the root to ICANN has been the subject of somewhat contradictory pronouncements. In the White Paper, DoC stated, “The U.S. Government would prefer that this transition be complete before the year 2000. To the extent that the new corporation is established and operationally stable, September 30, 2000 is intended to be, and remains, an ‘outside’ date.'” White Paper, supra note 15, at 31,744. More recently, DoC assured Congress that it intends to retain its rights over the DNS:
The Department of Commerce has no intention of transferring control over the root system to ICANN at this time [July 8, 1999]. . . . If and when the Department of Commerce transfers operational responsibility for the authoritative root server for the root server system to ICANN, an [sic] separate contract would be required to obligate ICANN to operate the authoritative root under the direction of the United States government.
Letter from Andrew J. Pincus, DoC General Counsel, to Rep. Tom Bliley, Chairman, United States House Committee on Commerce (July 8, 1999), National Telecommunications and Information Administration.
Meanwhile, or at best slightly later, DoC apparently assured the European Union that it intends to give ICANN full control over the DNS by October 2000:
[T]he U.S. Department of Commerce has repeatedly reassured the Commission that it is still their intention to withdraw from the control of these Internet infrastructure functions and complete the transfer to ICANN by October 2000. . . . The Commission has confirmed to the US authorities that these remaining powers retained by the United States DoC regarding ICANN should be effectively divested, as foreseen in the US White Paper.
Commission of the European Communities, Communication from the Commission to the Council and the European Parliament: The Organization and Management of the Internet International and European Policy Issues 1998-2000, at 14 (Apr. 7, 2000) (emphasis added), Information Society Promotion Office. Recently, DoC assured the GAO that “it has no current plans to transfer policy authority for the authoritative root server to ICANN, nor has it developed a scenario or set of circumstances under which such control would be transferred.” GAO Report, supra note 28, at 30. ICANN meanwhile stated on June 30, 2000, that “[s]ince it appears that all of the continuing tasks under the joint project may not be completed by the current termination date of the MOU, the MOU should be extended until all the conditions required to complete full transition to ICANN are accomplished.” Second Status Report Under ICANN/US Government Memorandum of Understanding (30 June 2000), § D.4, (June 30, 2000).
Since then, every time the MOU with ICANN has lapsed, the US has observed that the terms were not met — but extended the agreement. And every time, ICANN has said that it’s just about to meet all the necessary conditions any day now…although it never does. And in fact, ICANN has come closer and closer, although one or two major, perhaps insurmountable, obstacles remain (agreements with the root server operators and especially agreement with the ccTLD operators).
Thus, the ambiguity remained. Most recently, in fact, Commerce had sent signals suggesting it was leaning in ICANN’s favor, notably an announcement that the current MOU extension would be the last one — leading me and other observers to think the fix was in for turning ICANN loose.
But today, in a surprise statement by the Commerce Department, the US government took out the ambiguity — and said it intended to keep its authority over the root. In the short and medium term, the implications of this statement are political, not operational as the status quo for operations remains unchanged.
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