Communications, Issues

I think ICANN

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Do Internet domain names and their administration constitute property?

That is a key question whose answer may determine the future of the Internet itself in the next few months, when a Department of Commerce contract with the Internet Corporation for Assigned Names and Numbers (ICANN) comes to an end on Sept. 30.

That contract makes ICANN the world’s sole resolver of easy-to-remember Internet domain names with numerical IP addresses.

But, the government says, the administration of the domain name system is not a property.

In an April 28, 2014 letter responding to U.S. Rep. Darrell Issa (R-Calif.), who demanded NTIA’s legal authority to perform the transfer of the Internet Assigned Numbers Authority (IANA) functions property to ICANN, Strickling wrote, “the need for legislative authority to transfer government property does not concern the provision of the IANA functions under contract since no government property or assets are involved in the contract.”internet_questions

That, even though the October 1, 2012 National Telecommunications and Information Administration (NTIA) contract with ICANN states: “All deliverables under this contract become the property of the U.S. Government.”

Legally, then Congressional action would be required to transfer the IANA functions to the extent they do include government property under Article 4, Section 3 of the U.S. Constitution, which says that only “The Congress shall have power to dispose of … property belonging to the United States.” Absent Congressional authorization, then, the transition of administering the domain name system seemingly cannot occur.

Still, NTIA has clung to the notion that there is no property at stake with respect to administering the domain name system despite what the contract with ICANN states.

Even though NTIA has argued in the past that, for example, Country Code Top-Level Domain Names are the property of their respective governments in the case of United States Outlying Islands (.um) in 2008.

A similar issue is currently litigated recently against Iran (.ir), and although it has failed thus far to transfer control of that top-level domain to private litigants who were victims of terrorism by Iran, it hardly settled the overlying property question as it relates to domain names. There, ICANN has boldly argued there actually is no property at stake with Country Code Top-Level Domains. That case now proceeds to the D.C. Circuit Court of Appeals.

Other top-level domains are owned properties as well. Verisign owns and operates .com. The Public Interest Registry owns and operates .org. And so forth. When a .com or a .org name is sold, Verisign and the Public Interest Registry collect fees, respectively.

Recently, hundreds of new top-level domain names were created and bid on in a process overseen by ICANN — with millions of dollars of fees being transferred to ICANN — resulting in multiple new top-level domain name operators.

Ironically, ICANN acknowledged broad intellectual property issues involved with the new generic top-level domains when it collaborated with the World Intellectual Property Organization to create “a dispute resolution procedure through which trademark owners and intergovernmental organizations may file a formal objection to a third party’s application for a new top-level domain.”

Separately, there is the question of second-level domains — say, google.com — and whether they are treated as properties under by both U.S. and state laws. As noted by the Cato Institute’s David Post in the Washington Post, “The Anti-Cybersquatting Protection Act permits aggrieved trademark owners to institute in rem actions against domain names whose owners are located abroad (and not subject to the jurisdiction of the U.S. courts) — to seize the domain names and then to adjudicate the rights associated with them…”

Similarly, Post noted, “the Dept. of Homeland Security has issued several thousand seizure orders over the past few years against domain names allegedly involved in large-scale copyright infringement.”

Now, Post disagrees with the idea there is any property at stake at all, but, he wrote, U.S. law “treats domain names as if they were ‘property.’” Which really is the key point. That is, what the law says. Intellectual property is still property under the law.

When you buy a .com domain name, you are purchasing what is effectively a lease from Verisign for that name space for an agreed-upon period of time with renewal options.

GoDaddy’s domain name registration agreement allows vendors to list premium domain names for sale, but only if the vendor has “ownership rights for sale” that “[do] not infringe on the intellectual property rights of anyone else…” If that is not property, then what is?

Then, there is the matter of the root zone file itself — which is maintained also by Verisign — on behalf of the Commerce Department via another government contract and in facilitation of the process adopted by ICANN.

Here, too, advocates for a “no property” Internet maintain that no property is at stake, citing a 2000 report by the then-Government Accounting Office that stated, “It is uncertain whether transferring control [of the root zone] would involve the transfer of government property to a private entity.”

As for NTIA, it has tried its hardest simply not to answer this question — by design. As noted by the GAO in the 2000 report, “The Department has not determined whether the transition will entail the transfer of such property…” But why? Why had NTIA not undertaken a legal analysis to answer that question?

The Commerce Department general counsel letter to GAO stated at the time, “In the absence of such plans, we have not devoted the possibly substantial staff resources that would be necessary to develop a legal opinion as to whether legislation would be necessary to do so. In the absence of the underlying legal analysis, we decline to speculate about such an important issue.”

That was in 2000. In March 2014, Americans for Limited Government submitted a Freedom of Information Act (FOIA) request to obtain the legal analysis used by NTIA to justify its legal authority in transitioning the IANA functions — which oversees the root zone — prior to its decision.

There have been several replies to this FOIA request — here, here, here and here. But not one of them has included NTIA’s legal analysis justifying transitioning the IANA functions nor shed any light on NTIA’s legal opinion of transferring either the IANA functions or the root zone. Nor has the agency claimed any privileged exemptions to date, calling into question whether any such analysis was even performed prior to the transition’s announcement. Or, indeed, in the entire history of NTIA’s so-called “oversight” of the Internet’s domain name system.

Yes, NTIA has asserted that no property is at stake since the transition’s announcement, as in the agency’s letter response to Rep. Issa.  But it apparently still has not “devoted the possibly substantial staff resources that would be necessary to develop a legal opinion” since it has not produced an actual legal analysis making that case amounting to little more than a footnote in a letter to a member of Congress on a post hoc basis.

It is curious indeed, that nearly every layer of the domain name system seemingly consists of property, but not the administration of the system itself — even though it has generated billions of dollars of revenue for ICANN and Verisign and other top-level domain name operators. This could just be a little dance, however, a polite fantasy on the part of NTIA and ICANN, to pretend there are no property interests at stake when there really are.

Once the contract expires, the moment a competitor brings an antitrust suit against ICANN for being the world’s sole operator of the IANA functions, ICANN would presumably be compelled to claim a property right over those functions in order to defend its position.

Otherwise, what would be the organization’s argument to block competition in administering the root zone? That it does not own the rights to do so, but ICANN gets to charge exclusive fees as much as it wants for the domain name system’s upkeep? The government-created Internet monopoly won’t last long once the U.S. government contract with ICANN overseeing the Internet’s domain system ends, particularly if ICANN intends to argue it has no property rights, intellectual or otherwise, to administer the domain name system.

When it comes to any suit challenging its exclusive operation of the domain name system, then, ICANN will have an obvious property interest is at stake. That is when it will be revealed that the government simply feigned ignorance of the property interests at stake to facilitate the Internet transfer — all to avert antitrust law, Congressional authorization and even property disposal laws including securing the opinion of the Attorney General on the antitrust ramifications of the property transfer.

Could that not conceivably void ICANN’s precious antitrust exemption as a current or by then former government contractor? Could not the government officials who helped perpetrate the transfer, if it turns out to have been illegal, be found to have engaged in collusion with ICANN to create the global Internet monopoly?

Maybe a better question is whether anybody in Congress even cares.

In the 1998 Clinton administration White Paper, setting the course for ICANN’s establishment, antitrust suits were fully anticipated: “Applicable antitrust law will provide accountability to and protection for the international Internet community. Legal challenges and lawsuits can be expected within the normal course of business for any enterprise and the new corporation should anticipate this reality.”

Yet, today, nobody in Congress or among the multistakeholder community for that matter has publicly bothered to take a serious look at the antitrust issue — and its implications — throughout this whole process since the transition was announced. It is rather telling. There has not even been a single hearing on the antitrust issue in the House or the Senate. Why?

It tells us this whole idea is half-baked. To be clear, there is property at stake. It is worth billions. And the moment the Internet domain name system is free and clear of its government contracts, it will likely be subject to years if not decades of litigation trying to break up its monopoly — all imperiling the free and open Internet we all take for granted.

That is, if the U.S. or another sovereign does not first intervene to reestablish authoritative policy control over the root zone.

So, good luck with the transition. ICANN thinks it can get away with the Internet monopoly, and perhaps it will — for a little while. But it probably won’t last.

This is a guest post by Robert Romano senior editor of Americans for Limited Government.

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