Earlier this month, the U.S. government surprised the Internet community by announcing that it plans to back away from its longstanding oversight of the Internet domain name system. The move comes more than 15 years after it first announced plans to transfer management of the so-called IANA function, which includes the power to add new domain name extensions (such as dot-xxx) and to alter administrative control over an existing domain name extension (for example, approving the transfer of the dot-ca domain in 2000 from the University of British Columbia to the Canadian Internet Registration Authority).
My weekly technology law column (Toronto Star version, homepage version) notes the change is rightly viewed as a major development in the ongoing battle over Internet governance. Yet a closer look at the why the U.S. is embarking on the change and what the system might look like once the transition is complete, suggests that it is not relinquishing much power anytime soon. Rather, the U.S. has ensured that it will dictate the terms of any transfer and retain a “super-jurisdiction” for the foreseeable future.â€¨
The United Nations and supporting governments have attempted to loosen U.S. control on several prior occasions without success. Despite those failures, the U.S. now voluntarily says it will walk away from its oversight power, tasking ICANN with developing a transition plan that must “support and enhance the multistakeholder model.” The U.S. adds that it will not accept a proposal based on a government-led or an inter-governmental organization solution, short-circuiting any hopes the U.N. might have had for assuming control.â€¨â€¨
Why is the U.S. proposing to walk away now? In recent months, there has been growing momentum to revisit the issue, triggered by the Edward Snowden revelations of widespread Internet surveillance. Although NSA surveillance has no real connection to Internet governance – the management of the domain name system is not typically a surveillance target – the issue has galvanized many countries and groups who sense an opportunity for change. By forcing the issue, the U.S. has successfully seized the agenda and set the conditions for a transfer of power.
While a transfer would be perceived by many to represent a change in control, the reality is that the U.S. will not be relinquishing much power even when (or if) the transition occurs. In the years since the U.S. first indicated that it would shift away from Internet governance, it has steadily erected jurisdictional authority over a considerable portion of the Internet infrastructure. â€¨â€¨
For example, in 2009 the U.S. and ICANN entered into an agreement that institutionalized “the technical coordination of the Internet’s domain name and addressing system.” That document included a commitment for the U.S. to remain involved in the Governmental Advisory Committee (GAC), the powerful body within ICANN that allows governments to provide their views on governance matters. It also contained an ICANN commitment to remain headquartered in the U.S., effectively ensuring ongoing U.S. jurisdiction over it.
â€¨Not only is the U.S. able to assert jurisdiction over ICANN, but it has also asserted jurisdiction over all dot-com, dot-net, and dot-org domain names. In 2012, a U.S. court ordered the seizure of a dot-com domain that was registered in Canada with no U.S. connection other than the location of the domain name registry. This effectively means the U.S. retains jurisdiction over half of all domain name registrations worldwide regardless of where they are registered or who manages the system.â€¨â€¨
The U.S. might transition away from the current model (though the initial 2015 date seems ambitious), but much of its jurisdictional power will remain largely unchanged. The latest announcement has the potential to fulfill a promise made nearly two decades ago, but skeptics can be forgiven for suspecting that power over Internet governance will remain firmly rooted in the U.S. no matter how the issue is resolved.