CRS Report To Congress On Internet Governance

by Polsinelli

On November 13, 2013, the Congressional Research Service ("CRS") issued a report to Congress entitled "Internet Governance and the Domain Name System: Issues for Congress." The focus of the report is the United States' support of the Internet Corporation for Assigned Names and Numbers ("ICANN") and its multi-stakeholder model of Internet governance. To frame the issues Congress faces in seeking to maintain ICANN's multi-stakeholder model within the evolving realm of Internet governance, CRS detailed the inherent complexity of Internet governance, the specifics of how the Internet is currently governed, the different schools of thought regarding how the Internet should be governed and the recent catalysts that have sparked criticism regarding the current governing structure.

Internet governance is complex because the Internet is inherently international and therefore cannot be completely governed by national governments, yet Internet policy intersects with and has a significant impact on a nation's domestic policies regarding such issues as intellectual property, privacy and cyber security. Moreover, the functionality of the Internet depends on cooperation and participation of various private stakeholders around the world, including owners and operators of servers and networks, domain name registrars and registries, regional IP address allocation organizations, standards organizations, Internet service providers and Internet users.

Currently, Internet governance is comprised of many organizations, entities and governments that play various roles. One significant organization is ICANN, a not-for-profit organization that serves to manage and oversee the technical underpinnings of the Internet, including the domain name system and IP addressing. ICANN was created through a Memorandum of Understanding between the Department of Communications and ICANN in 1998 when the U.S. wanted to transition technical control of the domain name system to a private not-for-profit entity. The U.S. government has no statutory authority over ICANN or the domain name system; however, the Department of Communications and ICANN have entered into three separate contractual agreements that define the scope of ICANN's work. Accordingly, the U.S. exerts a "legacy authority" over ICANN and arguably has greater influence over ICANN and the domain name system than other governments.

ICANN utilizes the multi-stakeholder model of Internet governance that the U.S. supports by relying on a bottom-up approach to policy-making open to the various stakeholders of the Internet, including different international organizations and committees. Criticism of this model comes from members of the international community who assert that national governments do not have enough influence over ICANN decisions. Additionally, criticism stems from the contention that the United States has too much influence over ICANN. These critics argue that an international body that exerts intergovernmental control over the Internet, perhaps through the United Nations, should be created to allow all nations an equal role in Internet governance. In response, the United States argues that the multi-stakeholder model fosters collaborative and decentralized problem-solving that allows for an open, global Internet that would be hindered by a traditional, top-down regulatory model imposed by an intergovernmental system.

The debate between the multi-stakeholder and intergovernmental models has come into focus in the past few years due to controversies surrounding ICANN's decisions to operate a new .xxx top-level domain for adult websites and its expansion of generic top-level domains ("gTLD"). In regard to the .xxx domain, the Governmental Advisory Committee (GAC), an international committee that advises ICANN's Board, expressed to ICANN that certain of its members were emphatically opposed to the introduction of the .xxx domain and the decision to create the .xxx domain was not viewed favorably by many governments, including the U.S. Despite the lack of support, ICANN approved the domain. There was also opposition regarding the expansion of gTLD's due to concerns regarding intellectual property protection and cybercrimes. That opposition similarly did not deter ICANN from moving forward with its gTLD expansion as planned. ICANN's actions in regard to the .xxx top-level domain and gTLD expansion led governments to argue for increased governmental influence on ICANN in light of ICANN's failure to be responsive to the concerns that were raised in regard to both initiatives.

An additional threat to the current ICANN multi-stakeholder form of Internet governance is the potential for intergovernmental telecommunication organizations to decide to expand their reach to address Internet governance and lend their support for an intergovernmental model. For example, at the World Conference on International Telecommunications in 2012, the International Telecommunication Union adopted a non-binding resolution that stated that all governments should have an equal role and responsibility for international Internet governance. The United States did not support the resolution due to its inconsistency with the multi-stakeholder model.

Against this backdrop, CRS emphasized in its report the role Congress plays in overseeing the Department of Commerce's stewardship of ICANN and the domain name system and identified critical points for Congress to consider in its effort to maintain ICANN's credibility and preserve the integrity of the multi-stakeholder model. Specifically, CRS advised Congress to consider: (1) how transparent and accountable ICANN is; (2) how effectively ICANN balances the interests and positions of different stakeholders, especially in regard to controversial issues like the .xxx top-level domain and the gTLD expansion; (3) the sufficiency of safeguards to protect ICANN's Board of Directors from undue influence by special interests; (4) the United States legacy authority over ICANN and the domain name system and how the Department of Commerce can best use that authority to advance United States interests, while at the same time minimizing the perception by other nations that the United States has too much influence and control; and (5) the threat of other nations increasing intergovernmental control of the Internet by using intergovernmental telecommunications organizations and conferences as a platform.

CRS's report to Congress serves as a useful looking glass into the U.S.'s position regarding Internet governance, the opposition that exists in regard to that position and ICANN in particular and the complex and evolving issues that surround the practice of governing the Internet.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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