Will the United States’ Relinquished Control of ICANN Lead to Problems with Internet Functionality and Free Speech?
By Brad Bourne
Throughout the course of history, communications technology—from telegraphy and telephony, to newsprint, and radio broadcasting—has altered the way people and societies function. The internet, incidentally, is no exception. Since its penetration into popular culture in the late-twentieth century,[1] the internet has drastically changed what content we consume and how we consume it. Today, approximately 3 billion people around the world access and use the internet.[2] In a lot of ways, moreover, the internet has become a virtual cityscape. Rather than fighting crowds at local electronics stores, people now utilize sites like Amazon, eBay, and Wal-Mart to conduct business transactions online. Even banks, governmental agencies, and traditional news outlets have started to offer their services online. Simply put, the internet has become its own city-like entity as it offers many amenities that were once only accessible in “brick-and-mortar” structures. The internet is a place to go, with things to see, people to interact with, and products to purchase. Coupled with the unique combination of content that it offers, the internet’s meteoric rise as an international medium of communication, entertainment, and business has forced the United States government—and governments around the world—to determine how, if it all, the internet should be regulated.
With its privatization in 1995, the internet challenged the traditional means in which international communications networks developed.[3] The internet expanded without the guidance of “intergovernmental processes, such as the [International Telecommunications Union], and without generating rules of international law.”[4] Rather, the internet developed by means of a “multi-stakeholder processes” which standardized the internet’s network design, “protocols and managing names and numerical addresses on the internet.”[5] Control of the internet’s managing names and numerical addresses—the Domain Name System (DNS)—was entrusted to the Internet Corporation for Assigned Names and Numbers (ICANN) when the internet became privatized in the mid-1990s.[6] On a more technical level:
[T]he Internet Corporation for Assigned Names and Numbers (ICANN) coordinates the Internet Assigned Numbers Authority (IANA) functions, which are key technical services critical to the continued operations of the Internet's underlying address book, the Domain Name System (DNS). The IANA functions include: (1) the coordination of the assignment of technical protocol parameters including the management of the address and routing parameter area (ARPA) top- level domain; (2) the administration of certain responsibilities associated with Internet DNS root zone management such as generic (gTLD) and country code (ccTLD) Top-Level Domains; (3) the allocation of Internet numbering resources; and (4) other services.[7]
The debate over modern internet regulation, moreover, centers on ICANN and, more specifically, around its relationship with the government of the United States.
After the internet became “the backbone for worldwide communications and commerce,”[8] countries began to voice their displeasure with its “multi-stakeholder governance” structure.[9] Moreover, many countries suggested that the United States asserted too much control over the development of the Internet and continues to assert too much control over the supposedly apolitical entities that are responsible for managing the internet’s domain names.[10] ICANN, for example—the corporation responsible for managing the DNS of the internet—is a private company that consists of “academics, technical experts, private industry and government representatives, public interest advocates and individual users from around the world.”[11] At the same time, however, ICANN is incorporated in California, United States, and it is governed by California law.[12] With that being the case, many countries claim that the United States can further its own political agenda through its control of ICANN and, therefore, these countries want “to bring internet governance within intergovernmental processes and international law.”[13] Not to mention, the United States’ Department of Commerce worked in conjunction with ICANN to maintain and operate the DNS, ultimately giving the US government significant power in determining how the internet should operate.[14] The subject of internet governance has been the focus of at least two major international summits since the privatization of the internet: the World Summit on Information Society in December 2003, and The World Conference on International Telecommunications in 2012.[15] The latter of these international meetings resulted in several proposed amendments to the International Telecommunications Regulations of 1988 (ITRs) and created a rift in the internet governance debate.
These proposed amendments and international meetings ultimately led to the current state of the international internet governance debate. In September 2016, the United States government, in effect, relinquished its “control” of the DNS.[16] Whereas, in the past, the Department of Commerce worked in conjunction with ICANN to maintain the DNS, ICANN now has full control.[17] Criticism of this decision mainly stemmed from concerns of free speech.[18] Senator Ted Cruz of Texas, for example, maintained that the US government’s decision to relinquish control of ICANN was a slippery slope: “Imagine an internet run like many Middle Eastern countries that punish what they deem to be blasphemy.”[19] Cruz also noted that “[w]hen ICANN escapes from [US] government authority . . . ICANN escapes from having to worry about the First Amendment, from having to worry about protecting your rights or my rights.”[20]
Representatives of the United States and other similarly developed countries believe that such government oversight of the internet is merely a guise for oppressive regimes around the world to “restrict free expression and affect fundamental rights.”[21] While the protection of free speech is certainly a justifiable reason to oppose the regulation of a communications medium that, among other things, facilitates the distribution of information, it is not immediately apparent that relinquishing control of the DNS to ICANN, or subsequent control of ICANN by some other third party would impact on free speech.
First and foremost, ICANN is a technological entity.[22] That is, ICANN controls many of the functional aspects of the internet—like what names and numbers are assigned to different websites—but it does not regulate the content of the internet itself.[23] In addition, ICANN itself adamantly opposes any scenario in which it would play an oversight role in the regulation of internet content: “It has shown that a governance model defined by the inclusion of all voices, including business, academics, technical experts, civil society, governments and many others is the best way to assure that the internet of tomorrow remains as free, open and accessible as the internet of today.”[24]
Finally, even if ICANN were controlled by some other third party—such as the United Nations’ International Telecommunications Union, which some countries advocate for—it is difficult to imagine this third party interfering with the content that flows over another country’s internet network. After all, there is a well-defined principle of international law that “the sovereign right of each State to regulate its telecommunications is fully recognized.”[25] So, even if ICANN were controlled by some other third party, the United States would still maintain control over its telecommunications networks and the content that flows over these networks.
Whether the United States’ decision to relinquish control of the Domain Name System was a sound one, is up for debate, and can only be settled over the course of time. An important take-away from this decision, if nothing else, is that this relinquished control will not likely affect the content that flows over the internet in the United States. Oversight of a functionality or protocol is not necessarily synonymous with censorship of content and speech.
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[1] See, e.g., The Rise of the Internet, IBM, http://www-03.ibm.com/ibm/history/ibm100/us/en/icons/internetrise/ (last visited Nov. 5, 2016).
[2] Here’s How Many Internet Users There Are, Time (May 26, 2015), http://time.com/money/3896219/internet-users-worldwide/.
[3] See David P. Fidler, Internet Governance and International Law: The Controversy Concerning Revision of the International Telecommunication Regulations, ASIL (Feb. 7, 2013), https://www.asil.org/insights/volume/17/issue/6/internet-governance-and-international-law-controversy-concerning-revision.
[4] Id.
[5] Id.
[6] Eric Pfanner, Integrity of Internet Is Crux of Global Conference, N.Y. TIMES (Nov. 27, 2012), http://www.nytimes.com/2012/11/28/technology/dark-warnings-about-future-of-internet-access.html.
[7] About ICANN, ICANN, https://www.icann.org/resources/pages/welcome-2012-02-25-en (last visited Jan. 3, 2016)
[8] Id.
[9] See Fidler, supra note 3.
[10] Id.
[11] Internet Experts Submit Plan for US to Cede Control of ICANN, The Guardian (Aug. 4, 2015), http://www.theguardian.com/technology/2015/aug/04/internet-experts-plan-us-cede-control-icann.
[12] See id.
[13] See Fidler, supra note 3.
[14] Edward Moyer, US Hands Internet Control to ICANN, CNET (Oct. 1, 2016, 5:55 PM), https://www.cnet.com/news/us-internet-control-ted-cruz-free-speech-russia-china-internet-corporation-assigned-names-numbers/.
[15] See Fidler, supra note 3.
[16] Moyer, supra note
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Vinton G. Cerf, Keep the Internet Open, N.Y. Times (May 24, 2012), http://www.nytimes.com/2012/05/25/opinion/keep-the-internet-open.html?_r=0.
[22] See About ICANN, supra note 7.
[23] Id.
[24] Moyer, supra note 14.
[25] Int’l Telecomm. Union, Final Acts: World Conference on International Telecommunications, ITU (2012), http:// www.itu.int/en/wcit-12/Documents/final-acts-wcit-12.pdf.