Author Archives: Michael Froomkin

This doesn’t happen very often — well, ever, actually — a staff writer on the Wall Street Journal Editorial page just quoted favorably from one of my articles.

Lest the quote make me sound like more of a jingo than I actually am, let me explain the context. The US Department of Commerce (DoC) has been gradually extricating itself from management of the Internet domain name system (DNS). Until a few weeks ago, the major recent step in that distancing process was the so-called “Affirmation of Commitments” between the DoC and the Internet Corporation for Assigned Names and Numbers (ICANN) which I wrote about in Almost Free: An Analysis of ICANN’s ‘Affirmation of Commitments’, 9 J. Telecom. & High Tech. Law 187 (2011). That paper updated my original ICANN paper, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 DUKE L.J. 17 (2000), in which I explained the complicated web of relationships between DoC, ICANN, and other major players.

But ten days ago, everything changed again — sort of. In response to international political pressure that intensified after the Snowden revelations, the DoC announced that it planned to let go of its major remaining lever over ICANN, control of the so-called IANA function, as soon as the international community could craft a suitable transition plan. ICANN of course rushed to suggest that the transition should be to ICANN, but DoC (via the NTIA) has quite properly suggested that this isn’t quite what it had in mind.

Governments around the world are thought to prefer a system like the ITU or the UN (although not those bodies themselves) which are primarily controlled by governments on a one-sovereignty, one-vote system. And now we come to the part of this which I oppose. As accurately quoted by the WSJ, I believe it would be a mistake to give despots a say over the communications of democracies. Thus a fully world-wide international body dominated by governments seems like the wrong tool to me. It could be international but non-governmental. It could be run by a committee of democracies. We could give the whole thing to Canada (my favorite, but alas unlikely solution). Fortunately the US government has clarified its original remarks by saying it isn’t signing a blank check, and there are also ambiguities in what exactly got promised. So everything remains to be decided. But there are many interest groups that want this to happen as quickly as possible — before the US changes its mind, and before opposition groups wanting structural separation from ICANN or more accountability get organized. So we could be in for a wild ride.