There##s a lot of concern out there right now about America##s world leadership—facing down Iran##s nuclear program, bracing NATO##s commitment in Afghanistan, maintaining free trade. Here##s something else to worry about: Has the Obama administration just given up U.S. responsibility for protecting the Internet?
What makes it possible for users to connect with all the different Web sites on the Internet is the system that allocates a unique electronic address to each site. The addresses are organized within larger entities called top-level domains—”.com,” “.edu,” “.gov” and so on. Overseeing this arrangement is a relatively obscure entity, the Internet Corporation for Assigned Names and Numbers (ICANN). Without the effective oversight of ICANN, the Internet as we know it would not exist, billions of dollars of online commerce and intellectual property would be at risk, and various forms of mass censorship could become the norm.
Since its establishment in 1998, ICANN has operated under a formal contract with the U.S. Department of Commerce, which stipulated the duties and limits that the U.S. government expected ICANN to respect. The Commerce Department did not provide much active oversight, although the need to renew this contract, called the Joint Project Agreement (JPA), helped keep ICANN policies within reasonable bounds. That##s why last spring, when the Commerce Department asked for comment on ending the JPA, the U.S. business community opposed the idea.
But the U.S. government##s role in ICANN has long been a source of complaint from foreign nations. United Nations conferences have repeatedly voiced concerns about “domination of the Internet by one power” and suggested that management of the system should be handed off to the International Telecommunications Union—a U.N. agency dominated by developing countries. The European Union has urged a different scheme in which a G-12 of advanced countries would manage the Internet.
The Obama administration has declined to endorse such alternatives. Instead it has replaced the latest JPA, which expired Sept. 30, with a vaguely worded “Affirmation of Commitments.” In it, ICANN promises to be a good manager of the Internet, and the Commerce Department promises—well, not much of anything. The U.S. will participate in a Governmental Advisory Committee along with some three dozen other nations but claims no greater authority than any other country on the committee, whose recommendations are not binding on ICANN in any case.
An ICANN cut loose from U.S. government oversight will not, for that reason, be free from political pressures. One source of pressure will come from disputes about expanding top-level domain names. For example, would a “.xxx” domain help to isolate pornographic sites in a unique (and blockable) special area, or would it encourage censorship in other domains by suggesting that offensive images only appear there? Should we have “.food” or “.toys” along with “.com” domains? If we do, as the Justice Department warned last year in a letter to Commerce, companies that have invested huge sums to protect their trademarks under “.com” will have to fight for protection of their names in the new domains. Yet strangely, there is not a word in the new plan about protecting trademark rights or other intellectual property interests that might be threatened by new ICANN policies.
Even more disturbing is the prospect that foreign countries will pressure ICANN to impose Internet controls that facilitate their own censorship schemes. Countries like China and Iran already block Web sites they regard as politically objectionable. Islamic nations insist that the proper understanding of international human-rights treaties requires suppression of “Islamophobic” content on the Internet. Will ICANN be better situated to resist such pressures now that it no longer has a formal contract with the U.S. government?
It may be that the Obama administration expects to exert a steadying hand on ICANN in indirect or covert ways. Or here too it may have calculated that winning applause from other nations now is worth taking serious risks in the long run.
Mr. Rabkin is professor of law at George Mason University. Mr. Eisenach is an adjunct law professor at George Mason and chairman of Empiris LLC, which does consulting work for Verisign, an Internet registry. The Wall Street Journal