The Trouble with the TPP series explores Internet-related issues this week, starting with the surprising inclusion of Internet governance in a trade deal. The debate over Internet governance for much of the past decade has often come down to a battle between ICANN and the ITU (a UN body), which in turn is characterized as a choice between a private-sector led, bottoms-up, consensus model (ICANN) or a governmental-controlled approach. Canada (along with countries like the U.S. and Australia) have consistently sided with the ICANN-model, arguing for a multi-stakeholder approach with limited government intervention. In fact, at the 2014 NetMundial conference, the Canadian government stated:
The multistakeholder model of Internet governance has been a key driver in the success of the Internet to date. Canada firmly supports this model and believes it must continue to be the foundation for all discussions in order to preserve the Internet’s open architecture. Canada firmly supports strengthening this model. Government centric approaches would stifle the innovation and dynamism associated with the Internet.
The Trouble with the TPP is that it contradicts Canada’s longstanding policy on Internet governance. While Canada, the U.S. and other TPP countries urge the governments of the world to take a hands-off approach to the Internet, the TPP opens the door to country-code domain intervention (note that I am on the board of the Canadian Internet Registration Authority, which manages the dot-ca domain).
Article 18.28 on domain names requires each party to have a domain name dispute resolution system similar to the ICANN UDRP, to provide online public access to the WHOIS database that provides contact information for domain name registrants, and to have “appropriate remedies” for bad faith intent to profit from similar domains. According to earlier leaks, Canada joined most of the TPP in opposing the provision requiring remedies for bad faith intent to profit, perhaps recognizing the implications of mandated domain name regulation. The U.S. demand for a provision prevailed, however, creating trade rules that effectively require governments to regulate their national domains.
The current Canadian rules likely meet the the TPP requirements, but what if CIRA, acting as an independent manager of the dot-ca domain in consultation with its stakeholders, decided to amend its dispute resolution rules or to further restrict access to the WHOIS database? If the new CIRA rules were inconsistent with the TPP, the Canadian government would either face the prospect of violating the trade agreement or compelling CIRA to amend its rules. It is not clear how it would do that – perhaps a legislative act or an assertion of power over CIRA – but however achieved, it would require the government to directly intervene within the Canadian Internet governance model. That approach is what the government has long rejected, yet the TPP raises the possibility of abdicating those principles in order to meet the agreement’s obligations.
(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards)