Almost Free: An Analysis of ICANN’s ‘Affirmation of Commitments’ by A. Michael Froomkin

Introduction: On September 30, 2009, the United States Department of Commerce (“DOC”) and ICANN signed an “Affirmation of Commitments” (“Affirmation”) that purports to recast the public-private relationship at the heart of the management of the domain name system (“DNS”). ICANN trumpeted this document as a culmination of the move from public to private control of the DNS, one that ICANN said “completes a transition that started 11 years ago” and “places beyond doubt that the ICANN model is best equipped to coordinate” the DNS.ICANN’s CEO Rod Beckstrom summarized ICANN’s commitments in the Affirmation as follows: “It commits ICANN to remaining a private not for profit organization. It declares ICANN is independent and is not controlled by any one entity. It commits ICANN to reviews performed BY THE COMMUNITY — a further recognition that the multi-stakeholder model is robust enough to review itself.”This article examines the legal and political effects of the Affirmation. It begins by asking what the Affirmation actually changes in light of the pre-existing ICANN-DOC relationship. It then asks what these changes tell us about ICANN’s current legal status and about its future. It concludes that even though the Affirmation has been overhyped, the agreement is nonetheless a significant milestone in the evolution of the management of the DNS — but more for its political than its legal import. As a legal matter, the DOC allowed one of its main agreements with ICANN to lapse, thus surrendering the most formal and visible legal control the DOC had over ICANN. In so doing, the DOC gave up its reversionary interests in contracts ICANN had with third parties — the DOC’s right to require ICANN to assign those contracts to someone else were the DOC ever to lose faith in ICANN. In exchange, ICANN promised to remain located in the U.S., thus remaining subject to U.S. jurisdiction. ICANN also committed itself to a lengthy round of accountability exercises, although whether these will amount to anything substantive is not obvious. Furthermore, ICANN again expanded the role of its Government Advisory Committee (“GAC”), a committee of government representatives open to every nation, which has a direct channel to the ICANN Board as well some agenda-setting powers.If these changes are less legally earthshaking than the parties might have sought to make them seem, their political import is nonetheless real. By allowing its most visible agreement with ICANN to expire, the DOC made a tangible — if still incomplete — response to growing international pressure for the U.S. to abandon the control over ICANN that other nations feared gave the U.S. a dominant role over the DNS. ICANN enjoys significantly more independence after the Affirmation than it had before. And the GAC, the only direct means by which non-U.S. governments can influence ICANN, emerges from the Affirmation stronger as well.The article then revisits two underlying issues that the Affirmation papers over: what standby or fail-safe control the United States retains over the DNS, and to what extent that (or any) control over the DNS matters. Here the picture is less clear, but some of the answers are surprising: the U.S. retains a lessened, but still real, degree of control over the DNS — but it may not matter as much as many of us think. The possible risks of having a body — be it public or private — in charge of the DNS can be grouped into four categories: (1) primarily economic issues involving market power over DNS service providers (registrars and registries), (2) economic power exercised over registrants and other third parties, (3) more general political power over speech or other uses of the Internet, and (4) geo-strategic. Some of these, notably the economic risks, the article argues, are much more real dangers than others. In particular, the article asserts, the geo-strategic risk has been greatly exaggerated.Readers are assumed to understand the technical basis of the DNS.This research paper in full, along with the sourced of this introduction, can be downloaded from the University of Colorado at Boulder’s Journal on Telecommunications and High Technology Law at:
www.jthtl.org/content/articles/V9I1/JTHTLv9i1_Froomkin.PDF