Release 1.10 September 2005
by Solveig Singleton and Adam Thierer 
While it's hardly perfect, the Internet Corporation for Assigned Names and Numbers (ICANN)--the system created in 1998 to manage the domain name system (DNS)--is infinitely preferable to country-by-country Internet governance or a global regulatory bureaucracy run by the United Nations (UN). Originally envisioned as a private, non-profit entity, ICANN represented an attempt to create a truly global and neutral system of Internet domain name assignment and management, one beyond the influence of any single national government.
Well, at least that was the theory. ICANN now more commonly refers to itself as a public-private partnership. And recent actions by the U.S. Department of Commerce (DOC) call previous commitments to ICANN's independence into question. On August 11, the DOC's National Telecommunications and Information Administration (NTIA) sent a letter to the ICANN board of directors expressing concern about the creation of a new top level domain (TLD) for adult-oriented content. The NTIA letter asked ICANN to delay its decision ostensibly "to ensure that the concerns of all members of the Internet community on this issue have been adequately heard and resolved." But this ignores the elaborate 18-month-long process that ICANN used to evaluate new domain proposals (including.xxx) that relied on public comments and expert committee evaluations.
The new ".xxx" domain has been in the works for many years. By steering much adult-oriented content into a new TLD, it would make adult-oriented fare easy to find while simultaneously making it easier to filter for those who wanted to restrict access. The proposal is controversial for both reasons. Some critics argue that a new ".xxx" TLD will make porn much too easy to find, or that the authorization of such a TLD is tantamount to a formal endorsement of pornography. This concern was the impetus behind the August 11 letter to the ICANN board from Michael Gallagher, NTIA's Assistant Secretary for Communications and Information. Gallagher said that the agency had received 6,000 complaints opposing the creation of a new TLD for adult-oriented fare. The Family Research Council, which has been flooding the NTIA with complaints via its website,  argues that NTIA's rejection of the.xxx would "help stop the porn industry from expanding." But the ACLU also opposed the proposal, concerned that all adult-oriented content be pigeonholed into.xxx, creating the equivalent of a mandatory "red-light district" for cyberspace and facilitating censorship.
At this point, it is important to recall the special role that the U.S. Department of Commerce continues to play in the domain name assignment process. The U.S. helped create ICANN and gave it legitimacy. More importantly, the U.S. reserved the right to veto changes to the root DNS file. The root DNS file is a key element of the domain name system that helps users find content online, and routes email and other services. The DNS maps user-friendly domain names (like PFF.org) to unique numeric IP addresses. This requires a database too massive to hold in one place. The root DNS file is stored on eight servers around the globe, and each copy contains the names and numeric addresses of all the top level domains (.com,.org,.net,.us, and so on). Other servers then query that file to be directed to destinations the address of which is not stored locally. This means that the opinions of the United States government hold greater sway in the ICANN decision-making process.
The NTIA letter regarding the.xxx TLD is part of a much larger political debate over regulation of Internet content and control over the root files. The content issue is the focus in the short run; it seems unlikely that anyone in the Bush Administration would have raised a peep if this debate was about a new TLD for anything else. But this could signify a sea change at DOC--and perhaps at ICANN as well--in the approach to Internet governance, and a troubling one at that.
The NTIA's attempt to use control of the Internet's technical coordination functions as a tool of social policy is not sensible policy for three reasons. First, it recalls nineteenth century attempts to use the Post Office as a tool of censorship (at one point, for example, it was proposed that the federal government should use the Post Office to stop abolitionist literature from being sent through the mails).  This practice has generally been rejected in the United States as incompatible with the First Amendment. Where the U.S. government holds sway over a communications bottleneck, long-standing policy favors neutrality toward content. To do otherwise hands the managers of the communications medium an impossible enforcement task. And it destroys the credibility of the communications medium as a neutral conduit.
Furthermore, it won't work. Regardless of what the U.S. government does in this dispute, it is unlikely that the porn industry will be affected in any major way. One of the uncomfortable realities of the Internet Age is that pornography (a) has been a major driver of the growth of the Internet and broadband, and, (b) is not going away anytime soon. With or without.xxx, pornographic sites can easily be found using any search tool, from Google to Yahoo. The demand for pornography is not going to lessen. And the Internet is highly decentralized and the technology accommodating to those who want to communicate any kind of message using web sites, P2P networks, email, or other services.
Second, if accepted, the NTIA's petition would establish a horrible international legal and political precedent, contradicting the tradition of the United States as defender of freedom internationally. The very reason that ICANN was established and structured the way it is was to avoid government meddling with the technical structure of the Net. If NTIA got its way in this case and sabotaged the.xxx domain because it involves content unpopular with a strong U.S. political constituency, imagine how foreign governments might use that against America in the future. Countries like Saudi Arabia have a very different set of religious values they would like to see "protected" from the Net. The same goes for "subversive" political speech, which the Chinese currently take steps to censor. And think about how many European countries seek to control "culture" issues ("hate speech" regulation or language content, for example) and could use the Net to accomplish those goals. 
Third, building on the preceding points, if the current private DNS system breaks down due to one nation's government influence or meddling, critics will seize the opportunity to call for greater government control of the DNS system and Internet governance by other nations' governments or international bodies. On the one hand, ICANN needs to be accountable, and as the Internet domain name system is presently configured, dependant on one root directory, it is not subject to competition in the same sense as a shoe store or a supermarket. It depends on the DOC for its existence and legitimacy; in a sense, the idea that ICANN was or is private was a hopeful fiction.
In the absence of market alternatives such as an alternative root, the Department of Commerce may not be the worst entity for ICANN to be accountable to. But the present intervention highlights the hazards of that relationship. The relationship between DOC and ICANN is largely ad hoc, without any structural or procedural safeguards outside of the bare outlines of the MOU. Perhaps a less critical component of the world's information infrastructure could be credibly managed on that basis. But the Internet is now too important to be governed without any opportunity for public comment, appeal, or constitutional principles to take effect. The use of DOC's relationship with ICANN to shape social policy will destroy the credibility of that relationship.
Already, within the UN, there is strong opposition to the role the United States now plays in Internet governance. A report by the Working Group in Internet Governance  identifies as one of its issues of "highest priority" the "[u]nilateral control by the United States Government... in the authorization of changes to the root zone file."  The report laid out principles of Internet governance far removed from present U.S. policies, with the suggestion of more involvement by national governments and international bodies in infrastructure build-out, intellectual property issues, policies to support multiculturalism, data protection regulation, and so on. In the current environment of fierce anti-Americanism, an expanded role by other national governments would be unlikely to serve either U.S. interests however these are conceived. Nor (and more importantly) would it serve the interest of Internet users everywhere in preserving individual, political, and commercial freedom, the position with which the United States has been (until now) identified. Already, the position of NTIA on the.xxx domain has begun to popularize the idea of the UN's involvement; one editorialist described ICANN as "compromised."  Given that NTIA has arbitrarily allowed pressure from a private organization to shape policy without room for public comment or appeal at either Commerce or ICANN, it is hard to deny the truth of that charge.
The United States government needs to let ICANN run the DNS and avoid setting a disastrous example by preempting ICANN's decision-making process in the.xxx proceeding.  The time has come to discuss whether and how ICANN could be truly privatized and subject to market forces, or--if this is impossible--to structure DOC's relationship with ICANN to protect Internet user's freedom.
* Solveig Singleton and Adam Thierer are senior fellows at the Progress & Freedom Foundation.
The views expressed here are their own and do not necessarily reflect those of The Progress & Freedom Foundation, its officers or Board Members.
- https://www.frc.org/get.cfm?i=AL05H04&track=0 .
- For an excellent overview of postal censorhip throughout American history, see Paul Starr, The Creation of Media: Political Origins of Modern Communications ( New York : Basic Books, 2004), pp. 235-250, 268-294.
- If you care to see just how many governments are already engaged in these sorts of regulatory efforts, check out the OpenNet Intitative website: http://www.opennetinitiative.net/. Also see Adam Thierer and Clyde Wayne Crews, Who Rules the Net? Internet Governance and Jurisdiction ( Washington, D.C. : Cato Institute, 2003).
- http://www.wgig.org/index.html .
- Working Group on Internet Governance, Report of the Working Group on Internet Governance, June 2005, p. 6, available at http://www.wgig.org/docs/WGIGREPORT.pdf.
- Bill Thompson, "Whose Net is it Anyway," BBC News UK Edition, August 19 2005, available at http://news.bbc.co.uk/1/hi/technology/4165920.stm.
- For these reasons, a collection of almost 100 academics and Internet experts have sent a petition to the NTIA asking the agency to reconsider its position on this matter. See: "Statement Opposing Political Intervention in the Internet's Core Technical Administrative Functions," August 23, 2005, http://dcc.syr.edu/signaturepost.asp.