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Internet Governance and the Domain Name System: Issues for Congress

CRS Report for Congress
Prepared for Members and Committees of Congress
Internet Governance and the
Domain Name System:
Issues for Congress
Lennard G. Kruger
Specialist in Science and Technology Policy
January 2, 2013
Congressional Research Service
7-5700
www.crs.gov
R42351
Internet Governance and the Domain Name System: Issues for Congress
Congressional Research Service
Summary
The Internet is often described as a “network of networks” because it is not a single physical
entity, but hundreds of thousands of interconnected networks linking hundreds of millions of
computers around the world. As such, the Internet is international, decentralized, and comprised
of networks and infrastructure largely owned and operated by private sector entities. As the
Internet grows and becomes more pervasive in all aspects of modern society, the question of how
it should be governed becomes more pressing.
Currently, an important aspect of the Internet is governed by a private sector, international
organization called the Internet Corporation for Assigned Names and Numbers (ICANN), which
manages and oversees some of the critical technical underpinnings of the Internet such as the
domain name system and Internet Protocol (IP) addressing. ICANN makes its policy decisions
using a multistakeholder model of governance, in which a “bottom-up” collaborative process is
open to all constituencies of Internet stakeholders.
National governments have recognized an increasing stake in ICANN policy decisions, especially
in cases where Internet policy intersects with national laws addressing such issues as intellectual
property, privacy, law enforcement, and cybersecurity. Some governments around the world are
advocating increased intergovernmental influence over the way the Internet is governed. For
example, specific proposals have been advanced that would create an Internet governance entity
within the United Nations (U.N.). Other governments (including the United States), as well as
many other Internet stakeholders, oppose these proposals and argue that ICANN’s
multistakeholder model, while not perfect and needing improvement, is the most appropriate way
to govern the Internet.
Currently, the U.S. government, through the National Telecommunications and Information
Administration (NTIA) at the Department of Commerce, enjoys a unique influence over ICANN,
largely by virtue of its legacy relationship with the Internet and the domain name system. A key
issue for the 113th Congress is whether and how the U.S. government should continue to
maximize U.S. influence over ICANN’s multistakeholder Internet governance process, while at
the same time effectively resisting proposals for an increased role by international governmental
institutions such as the U.N. An ongoing concern is to what extent will future intergovernmental
telecommunications conferences (such as the December 2012 World Conference on International
Telecommunications or WCIT) constitute an opportunity for some nations to increase
intergovernmental control over the Internet, and how effectively will NTIA and other government
agencies (such as the State Department) work to counteract that threat?
The outcome of this debate will likely have a significant impact on how other aspects of the
Internet may be governed in the future, especially in such areas as intellectual property, privacy,
law enforcement, Internet free speech, and cybersecurity. Looking forward, the institutional
nature of Internet governance could have far reaching implications on important policy decisions
that will likely shape the future evolution of the Internet.
Internet Governance and the Domain Name System: Issues for Congress
Congressional Research Service
Contents
What Is Internet Governance? ......................................................................................................... 1
How Is the Internet Currently Governed? ........................................................................................ 1
Role of U.S. Government ................................................................................................................ 3
Affirmation of Commitments .................................................................................................... 4
DOC Contracts With ICANN and VeriSign .............................................................................. 5
Debate over Future Model of Internet Governance ......................................................................... 6
2005 World Summit on the Information Society (WSIS) .......................................................... 7
Creation of the .xxx Domain and New gTLDs .......................................................................... 8
.xxx ...................................................................................................................................... 8
gTLD Expansion ............................................................................................................... 10
Proposed Models for Internet Governance .............................................................................. 14
World Conference on International Telecommunications (WCIT).......................................... 17
Issues for Congress ........................................................................................................................ 18
Figures
Figure A-1. Organizational Structure of ICANN ........................................................................... 22
Appendixes
Appendix. ICANN Basics.............................................................................................................. 21
Contacts
Author Contact Information........................................................................................................... 22
Internet Governance and the Domain Name System: Issues for Congress
Congressional Research Service 1
What Is Internet Governance?
There is no universally agreed-upon definition of “Internet governance.” A more limited
definition would encompass the management and coordination of the technical underpinnings of
the Internet—such as domain names, addresses, standards, and protocols that enable the Internet
to function. A broader definition would include the many factors that shape a variety of Internet
policy-related issues, such as such as intellectual property, privacy, Internet freedom, ecommerce,
and cybersecurity.
One working definition was developed at the World Summit on the Information Society (WSIS)
in 2005:
Internet governance is the development and application by governments, the private sector
and civil society, in their respective roles, of shared principles, norms, rules, decisionmaking
procedures, and programmes that shape the evolution and use of the Internet.1
Another definition developed by the Internet Governance Project (IGP)2 delineates three aspects
of the Internet that may require some level of governing: technical standardization, which
involves arriving at and agreeing upon technical standards and protocols; resource allocation and
assignment which includes domain names and Internet Protocol (IP) addresses; and human
conduct on the Internet, encompassing the regulations, rules, and policies affecting areas such as
spam, cybercrime, copyright and trademark disputes, consumer protection issues, and public and
private security. With these three categories in mind, the IGP definition is:
Internet governance is collective decisionmaking by owners, operators, developers, and users
of the networks connected by Internet protocols to establish policies, rules, and dispute
resolution procedures about technical standards, resource allocations, and/or the conduct of
people engaged in global internetworking activities.3
How Is the Internet Currently Governed?
The nature of the Internet, with its decentralized architecture and structure, makes the practice of
governing a complex proposition. First, the Internet is inherently international and cannot in its
totality be governed by national governments whose authority ends at national borders. Second,
the Internet’s successful functioning depends on the willing cooperation and participation by
mostly private sector stakeholders around the world. These stakeholders include owners and
operators of servers and networks around the world, domain name registrars and registries,
regional IP address allocation organizations, standards organizations, Internet service providers,
and Internet users.
1 Tunis Agenda for the Information Society, November 18, 2005, WSIS-05/TUNIS/DOC6(Rev.1)-E, p. 6, available at
http://www.itu.int/wsis/docs2/tunis/off/6rev1.pdf.
2 The IGP describes itself as “an alliance of academics that puts expertise into practical action in the fields of global
governance, Internet policy, and information and communication technology.” See http://www.internetgovernance.org.
3 Milton Mueller, John Mathiason, and Hans Klein, “The Internet and Global Governance: Principles and Norms for a
New Regime,” Global Governance, vol. 13 (2007), p. 245.
Internet Governance and the Domain Name System: Issues for Congress
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Given the multiplicity and diversity of Internet stakeholders, a number of organizations and
entities play varying roles. It is important to note that all of the Internet stakeholders cited above
participate in various ways within the various fora, organizations, and frameworks addressing
Internet governance and policy.
Key organizations in the private sector include the following:
Internet Corporation for Assigned Names and Numbers (ICANN )—ICANN was created in 1998
through a Memorandum of Understanding with the Department of Commerce (see the following
section of this report, “Role of U.S. Government”). Directed by an internationally constituted
Board of Directors, ICANN is a private, not-for-profit organization based in Marina Del Ray, CA,
which manages and oversees the critical technical underpinnings of the Internet such as the
domain name system and IP addressing (see the Appendix for more background information on
ICANN). ICANN implements and enforces many of its policies and rules through contracts with
registries (companies and organizations who operate and administer the master database of all
domain names registered in each top level domain, such as .com and .org) and accredited
registrars (the hundreds of companies and organizations with which consumers register domain
names). Policies are developed by Supporting Organizations and Committees in a consensusbased
“bottom-up” process open to various constituencies and stakeholders of the Internet. As
such, ICANN is often pointed to as emblematic of the “multistakeholder model” of Internet
governance.
Internet standards organizations—As the Internet has evolved, groups of engineers, researchers,
users, and other interested parties have coalesced to develop technical standards and protocols
necessary to enable the Internet to function smoothly. These organizations conduct standards
development processes that are open to participants and volunteers from around the world.
Internet standards organizations include the Internet Engineering Task Force (IETF), the Internet
Architecture Board (IAB), the Internet Society (ISOC), and the World Wide Web Consortium
(W3C).
Governmental entities involved in Internet governance include the following:
Governmental Advisory Committee (GAC)—As part of ICANN’s multistakeholder process, the
GAC provides advice to the ICANN Board on matters of public policy, especially in cases where
ICANN activities and policies may interact with national laws or international agreements related
to issues such as intellectual property, law enforcement, and privacy. Although the ICANN Board
is required to consider GAC advice and recommendations, it is not obligated to follow those
recommendations. Membership in the GAC is open to all national governments who wish to
participate. Currently, there are 113 nations represented, and the GAC Chair is presently held by
Canada, with Vice Chairs held by Kenya, Sweden, and Singapore.
Internet Governance Forum (IGF)—The IGF was established in 2006 by the United Nation’s
World Summit on the Information Society (WSIS). The purpose of the IGF is to provide a
multistakeholder forum which provides an open discussion (in yearly meetings) on public policies
related to the Internet. Open to all stakeholders and interested parties (governments, industry,
academia, civil society), the IGF serves as an open discussion forum and does not have negotiated
outcomes, nor does it make formal recommendations to the U.N. In December 2010, the U.N.
General Assembly renewed the IGF through 2015 and tasked the U.N.’s Commission on Science
and Technology for Development (CSTD) to develop a report and recommendations on how the
IGF might be improved. A Working Group on Improvements to the Internet Governance Forum
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was formed by the U.N., which includes 22 governments (including the United States) and the
participation of Internet stakeholder groups.
Other International Organizations—Other existing international organizations address Internet
policy issues in various ways. The International Telecommunications Union (ITU) is the United
Nations specialized agency for communications and information technology. The World
Intellectual Property Organization (WIPO) is another specialized agency of the U.N., which
addresses a wide range of intellectual property issues, including those related to Internet policy.
The Organisation for Economic Co-operation and Development (OECD) provides a forum for
governments to work together to address economic issues, including the recent development of
Internet policymaking principles. While none of these organizations have direct control or
authority over the Internet, their activities can have influence over future directions of global
Internet policy.
National governments—National governments have acted to address various Internet policy
issues within their own borders. Many of the national laws and regulations pertain to user
behavior on the Internet. For example, in the United States, laws have been passed addressing
such issues as cybersecurity and cybercrime, Internet gambling, Internet privacy, and protection
of intellectual property on the Internet. Governments have also established internal Internet policy
coordinating bodies (e.g., the National Telecommunication and Information Administration’s
Internet Policy Task Force and the European Commission’s Information Society).
Role of U.S. Government
The United States government has no statutory authority over ICANN or the domain name
system. However, because the Internet evolved from a network infrastructure created by the
Department of Defense, the U.S. government originally owned and operated (primarily through
private contractors) many of the key components of network architecture that enabled the domain
name system to function. In the early 1990s, the National Science Foundation (NSF) was given a
lead role in overseeing domain names used in the civilian portion of the Internet (which at that
time was largely comprised of research universities). By the late 1990s, ICANN was created, the
Internet had expanded into the commercial world, and the National Telecommunications and
Information Administration (NTIA) of the Department of Commerce (DOC) assumed the lead
role.
A 1998 Memorandum of Understanding between ICANN and the DOC initiated a process
intended to transition technical DNS coordination and management functions to a private-sector
not-for-profit entity. While the DOC plays no role in the internal governance or day-to-day
operations of ICANN, the U.S. government, through the DOC/NTIA, retains a role with respect
to the DNS via three separate contractual agreements. These are:
• a 2009 Affirmation of Commitments (AoC) between DOC and ICANN;4
4 For more information on the Affirmation of Commitments, including the precursor agreements between DOC and
ICANN such as the Joint Project Agreement and the Memorandum of Understanding, see CRS Report 97-868, Internet
Domain Names: Background and Policy Issues, by Lennard G. Kruger.
Internet Governance and the Domain Name System: Issues for Congress
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• a contract between ICANN and DOC to perform various technical functions such
as allocating IP address blocks, editing the root zone file, and coordinating the
assignment of unique protocol numbers; and
• a cooperative agreement between DOC and VeriSign to manage and maintain the
official DNS root zone file.
By virtue of those three contractual agreements, the United States government—through
DOC/NTIA—exerts a legacy authority over ICANN, and arguably has more influence over
ICANN and the DNS than other national governments.
While NTIA is the lead agency overseeing domain name issues, other federal agencies maintain a
specific interest in the DNS that may affect their particular missions. For example, the Federal
Trade Commission (FTC) seeks to protect consumer privacy on the Internet, the Department of
Justice (DOJ) addresses Internet crime and intellectual property issues, and the Department of
Defense and Department of Homeland Security address cybersecurity issues. However none of
these agencies have legal authority over ICANN or the running of the DNS.
Affirmation of Commitments
On September 30, 2009, DOC and ICANN announced agreement on an Affirmation of
Commitments (AoC) to “institutionalize and memorialize” the technical coordination of the DNS
globally and by a private-sector-led organization.5 The AoC replaced the previous Memorandum
of Understanding and subsequent Joint Project Agreement between DOC and ICANN. It has no
expiration date and would conclude only if one of the two parties decided to terminate the
agreement.
Under the AoC, ICANN committed to remain a not-for-profit corporation “headquartered in the
United States of America with offices around the world to meet the needs of a global
community.” According to the AoC, “ICANN is a private organization and nothing in this
Affirmation should be construed as control by any one entity.” Specifically, the AoC called for the
establishment of review panels which will periodically make recommendations to the ICANN
Board in four areas: ensuring accountability, transparency, and the interests of global Internet
users (panel includes the Administrator of NTIA); preserving security, stability, and resiliency;
impact of new generic top level domains (gTLDs); and WHOIS policy.6
On December 31, 2010, the Accountability and Transparency Review Team (ATRT) released its
recommendations to the Board for improving ICANN’s transparency and accountability with
respect to Board governance and performance, the role and effectiveness of the GAC and its
interaction with the Board, public input and policy development processes, and review
mechanisms for Board decisions.7 At the June 2011 meeting in Singapore, the Board adopted all
5 Affirmation of Commitments by the United States Department of Commerce and the Internet Corporation for
Assigned Names and Numbers, September 30, 2009, available at http://www.ntia.doc.gov/ntiahome/domainname/
Affirmation_of_Commitments_2009.pdf.
6 WHOIS is a publically available online database that provides information on domain name registrants. WHOIS is
used to identify domain name holders. WHOIS policy is controversial because it encompasses two competing
considerations: protecting the privacy of domain name holders versus enabling law enforcement and trademark holders
to identify owners of domain names and websites engaging in criminal activities or infringing on intellectual property.
7 The ATRT final report is available at http://www.icann.org/en/reviews/affirmation/atrt-final-recommendations-
(continued...)
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27 ATRT recommendations. According to NTIA, “the focus turns to ICANN management and
staff, who must take up the challenge of implementing these recommendations as rapidly as
possible and in a manner that leads to meaningful and lasting reform.”8
DOC Contracts With ICANN and VeriSign
A contract between DOC and ICANN authorizes the Internet Assigned Numbers Authority
(IANA) to perform various technical functions such as allocating IP address blocks, editing the
root zone file, and coordinating the assignment of unique protocol numbers. Additionally, a
cooperative agreement between DOC and VeriSign (a company that operates the .com and .net
registries) authorizes VeriSign to manage and maintain the official root zone file that is contained
in the Internet’s root servers that underlie the functioning of the DNS.9 By virtue of these legal
agreements, the DOC must approve changes or modifications made to the root zone file (changes,
for example, such as adding a new top level domain).10
Debate among Internet stakeholders was ongoing over the renewal of the IANA contract between
DOC and ICANN, which was due to expire on September 30, 2012. The IANA contract renewal
provided a further arena for the larger debate over Internet governance. NTIA’s draft Statement of
Work (SOW) detailing work requirements for the IANA contract11 included a provision requiring
that requests to IANA for new gTLDs be accompanied by documentation demonstrating how the
proposed new gTLD “reflects consensus among relevant stakeholders and is supportive of the
global public interest.”12 ICANN and many others in the domain name community submitted
comments to NTIA, expressing strong opposition to the proposal that requests to IANA for new
gTLDs be accompanied by documentation demonstrating global public support and consensus.
According to ICANN, such a step would undermine ICANN’s multistakeholder model by
revising the gTLD implementation and policy processes already adopted through the bottom-up
decision-making process.13
(...continued)
31dec10-en.pdf.
8 NTIA, Press Release, “NTIA Commends ICANN Board on Adopting the Recommendations of the Accountability
and Transparency Review Team,” June 24, 2011, available at http://www.ntia.doc.gov/press/2011/
NTIA_Statement_06242011.html.
9 According to the National Research Council, “The root zone file defines the DNS. For all practical purposes, a top
level domain (and, therefore, all of its lower-level domains) is in the DNS if and only if it is listed in the root zone file.
Therefore, presence in the root determines which DNS domains are available on the Internet.” See National Research
Council, Committee on Internet Navigation and the Domain Name System, Technical Alternatives and Policy
Implications, Signposts on Cyberspace: The Domain Name System and Internet Navigation, National Academy Press,
Washington, DC, 2005, p. 97.
10 The June 30, 2005, “U.S. Principles on the Internet’s Domain Name and Addressing System” stated the intention to
“preserve the security and stability” of the DNS, and asserted that “the United States is committed to taking no action
that would have the potential to adversely impact the effective and efficient operation of the DNS and will therefore
maintain its historic role in authorizing changes or modifications to the authoritative root zone file.” See
http://www.ntia.doc.gov/ntiahome/domainname/USDNSprinciples_06302005.pdf.
11 Department of Commerce, National Telecommunications and Information Administration, “Request for Comments
on the Internet Assigned Numbers Authority (IANA) Functions,” 76 Federal Register 10570, February 25, 2011.
12 Ibid., p. 34662.
13 See ICANN comments at http://www.ntia.doc.gov/files/ntia/icann_fnoi_comments_20110722.pdf, p. 7.
Internet Governance and the Domain Name System: Issues for Congress
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NTIA’s final contract solicitation, released on November 10, 2011, lessened the IANA contractor
requirements for adding new gTLDs, stating that when adding new gTLDs to the root zone, the
contractor must provide “specific documentation demonstrating how the process provided the
opportunity for input from relevant stakeholders and was supportive of the global public
interest.”14 The IANA contract solicitation issued by NTIA specified that the contractor must be a
wholly U.S. owned and operated firm or a U.S. university or college; that all primary operations
and systems shall remain within the United States; and that the U.S. government reserves the
right to inspect the premises, systems, and processes of all facilities and components used for the
performance of the contract.
On July 2, 2012, NTIA announced the award of the new IANA contract to ICANN for up to seven
years (through September 2019). The new contract included a separation between the policy
development of IANA services and the implementation by the IANA functions contractor. The
contract also featured “a robust company-wide conflict of interest policy; a heightened respect for
local national law; and a series of consultation and reporting requirements to increase
transparency and accountability.”15
U.S. government authority and control over IANA and the management of the root zone file is a
long-standing point of contention internationally. For example, while the European Commission
approved many aspects of the new IANA contract, it sounded the following caution:
The Commission believes greater respect should be given by the IANA contractor to
respecting applicable law (such as EU personal data protection laws). The Commission will
continue to take the initiative for such provisions in future IANA contracts as part of its
efforts to ensure sustainable multi-stakeholder governance of the Internet, in the service of
public interest, as a matter of both principle and efficient practice. In that context, it noted
with regret that non-US companies are not allowed to compete for the forthcoming IANA
contract.16
Debate over Future Model of Internet Governance
Given its complexity, diversity, and international nature, how should the Internet be governed?
Some assert that a multistakeholder model of governance is appropriate, where all stakeholders
(both public and private sectors) arrive at consensus through a transparent bottom-up process.
Others argue that a greater role for national governments is necessary, either through increased
influence through the multistakeholder model, or under the auspices of an international body
exerting intergovernmental control.
To date, ICANN and the governance of the domain name system has been the focal point of this
debate. While ICANN’s mandate is to manage portions of the technical infrastructure of the
14 Available at https://www.fbo.gov/index?s=opportunity&mode=form&id=c564af28581edb2a7b9441eccfd6391d&
tab=core&_cview=0.
15 NTIA, Press Release, “Commerce Department Awards Contract for Management of Key Internet Functions to
ICANN,” July 2, 2012, available at http://www.ntia.doc.gov/press-release/2012/commerce-department-awardscontract-
management-key-internet-functions-icann.
16 European Commission, “Digital Agenda: Commission welcomes improvements in new IANA contract,” Press
Release, November 14, 2011, available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1345&
format=HTML&aged=0&language=EN&guiLanguage=en.
Internet Governance and the Domain Name System: Issues for Congress
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Internet (domain names and IP addresses), many of the decisions ICANN makes affect other
aspects of Internet policy, including areas such as intellectual property, privacy, and cybersecurity.
These are areas which many national governments have addressed for their own citizens and
constituencies through domestic legislation, as well as through international treaties.
As part of the debate over an appropriate model of Internet governance, criticisms of ICANN
have arisen on two fronts. One criticism reflects the tension between national governments and
the current performance and governance processes of ICANN, whereby governments feel they
lack adequate influence over ICANN decisions that affect a range of Internet policy issues. The
other criticism is fueled by concerns of many nations that the U.S. government holds undue
legacy influence and control over ICANN and the domain name system.
The debate over multistakeholderism vs. intergovernmental control initially manifested itself in
2005 at the World Summit on the Information Society (WSIS), which was a conference organized
by the United Nations. More recently, this debate has been rekindled in various international fora,
partially sparked by two ICANN actions in 2011: the approval of the .xxx top-level domain and
the approval of a process to allow an indefinite number of new generic top level domains
(gTLDs).
2005 World Summit on the Information Society (WSIS)
Following the creation of ICANN in 1998, many in the international community, including
foreign governments, argued that it was inappropriate for the U.S. government to maintain its
legacy authority over ICANN and the DNS. They suggested that management of the DNS should
be accountable to a higher intergovernmental body. The United Nations, at the first phase of the
WSIS in December 2003, debated and agreed to study the issue of how to achieve greater
international involvement in the governance of the Internet, and the domain name system in
particular. The study was conducted by the U.N.’s Working Group on Internet Governance
(WGIG). On July 14, 2005, the WGIG released its report,17 stating that no single government
should have a preeminent role in relation to international Internet governance. The report called
for further internationalization of Internet governance, and proposed the creation of a new global
forum for Internet stakeholders. Four possible models were put forth, including two involving the
creation of new Internet governance bodies linked to the U.N. Under three of the four models,
ICANN would either be supplanted or made accountable to a higher intergovernmental body. The
report’s conclusions were scheduled to be considered during the second phase of the WSIS held
in Tunis in November 2005. U.S. officials stated their opposition to transferring control and
administration of the domain name system from ICANN to any international body. Similarly, the
109th Congress expressed its support for maintaining existing U.S. control over ICANN and the
DNS (H.Con.Res. 268 and S.Res. 323).18
The European Union (EU) initially supported the U.S. position. However, during the September
2005 preparatory meetings, the EU seemingly shifted its support towards an approach which
favored an enhanced international role in governing the Internet. Conflict at the WSIS Tunis
17 Working Group on Internet Governance, Report from the Working Group on Internet Governance, World Summit on
the Information Society, Document WSIS-II/PC-3/DOC/5-E, August 3, 2005, available at http://www.itu.int/wsis/
docs2/pc3/html/off5/index.html.
18 In the 109th Congress, H.Con.Res. 268 was passed unanimously by the House on November 16, 2005. S.Res. 323
was passed in the Senate by Unanimous Consent on November 18, 2005.
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Summit over control of the domain name system was averted by the announcement, on
November 15, 2005, of an Internet governance agreement between the United States, the EU, and
over 100 other nations. Under this agreement, ICANN and the United States maintained their
roles with respect to the domain name system. A new international group under the auspices of
the U.N. was formed—the Internet Governance Forum (IGF)—which would provide an ongoing
forum for all stakeholders (both governments and nongovernmental groups) to discuss and debate
Internet policy issues.
Creation of the .xxx Domain and New gTLDs
Starting in 2010 and 2011, controversies surrounding the roll-out of new generic top level
domains (gTLDs) and the addition of the .xxx TLD led some governments to argue for increased
government influence on the ICANN policy development process.19
.xxx
Since 2000, ICANN has repeatedly considered whether to allow the establishment of a gTLD for
adult content. On June 1, 2005, ICANN announced that it had entered into commercial and
technical negotiations with a registry company (ICM Registry) to operate a new “.xxx” domain,
which would be designated for use by adult websites. With the ICANN Board scheduled to
consider final approval of the .xxx domain on August 16, 2005, the Department of Commerce
sent a letter to ICANN requesting that adequate additional time be provided to allow ICANN to
address the objections of individuals expressing concerns about the impact of pornography on
families and children and opposing the creation of a new top level domain devoted to adult
content. ICANN’s Governmental Advisory Committee (GAC) also requested more time before
the final decision.
On March 30, 2007, the ICANN Board voted 9-5 to deny the .xxx domain. ICM Registry
subsequently challenged ICANN’s decision before an Independent Review Panel (IRP), claiming
that ICANN’s rejection of ICM’s application for a .xxx gTLD was not consistent with ICANN’s
Articles of Incorporation and Bylaws. On February 19, 2010, a three-person Independent Review
Panel ruled primarily in favor of ICM Registry, finding that its application for the .xxx TLD had
met the required criteria.
Subsequently, on June 25, 2010, at the ICANN meeting in Brussels, the Board of Directors voted
to allow ICM’s .xxx application to move forward, and at the December 2010 ICANN meeting, the
ICANN Board passed a resolution stating that while “it intends to enter into a registry agreement
with ICM Registry for the .xxx TLD,” the Board would enter into a formal consultation with the
Governmental Advisory Committee on areas where the Board’s decision was in conflict with
GAC advice relating to the ICM application.20
While not officially or formally in opposition to the approval of .xxx, the GAC advised ICANN
that “there is no active support of the GAC for the introduction of a .xxx TLD” and that “while
19 See McCarthy, Kieren, .nxt, “Global Internet Governance Fight Looms,” September 22, 2011, available at
http://news.dot-nxt.com/2011/09/22/internet-governance-fight-looms.
20 ICANN, Adopted Board Resolutions, Cartegena, December 10, 2010, available at http://www.icann.org/en/minutes/
resolutions-10dec10-en.htm#4.
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there are members, which neither endorse nor oppose the introduction of a .xxx TLD, others are
emphatically opposed from a public policy perspective to the introduction of an .xxx TLD.”21 The
GAC listed a number of specific issues and objections that it wished ICANN to resolve.
A February 2011 letter from ICANN to the GAC acknowledged and responded to areas where
approving the .xxx registry agreement with ICM would conflict with GAC advice received by
ICANN.22 The Board acknowledged that ICANN and the GAC were not able to reach a mutually
acceptable solution, and ultimately, on March 18, 2011, the Board approved a resolution giving
the CEO or General Counsel of ICANN the authority to execute the registry agreement with ICM
to establish a .xxx TLD. The vote was nine in favor, three opposed, and four abstentions.
The decision to create a .xxx TLD was not viewed favorably by many governments.23 In an April
6, 2011, letter to the Department of Commerce, the European Commissioner for the Digital
Agenda asked that the introduction of .xxx be delayed.24 In its response, NTIA said it “share[s]
your disappointment that ICANN ignored the clear advice of governments worldwide, including
the United States, by approving the new .xxx domain.”25 However, NTIA stated why it would not
(and did not) interfere with the addition of .xxx:
While the Obama Administration does not support ICANN’s decision, we respect the multistakeholder
Internet governance process and do not think that it is in the long-term best
interest of the United States or the global Internet community for us unilaterally to reverse
the decision. Our goal is to preserve the global Internet, which is a force for innovation,
economic growth, and the free flow of information. I agree with you that the Board took its
action without the full support of the community and accordingly, I am dedicated to
improving the responsiveness of ICANN to all stakeholders, including governments
worldwide.26
21 Letter from Chair, Governmental Advisory Committee to ICANN Chairman of the Board, March 16, 2011, available
at https://gacweb.icann.org/download/attachments/1540116/20110316+GAC+Advice+on+.xxx.pdf?version=2&
modificationDate=1312469527000.
22 Letter from ICANN to Chair of GAC, February 10, 2011, available at http://icann.org/en/correspondence/jeffrey-toto-
dryden-10feb11-en.pdf.
23 ICANN must receive formal approval from NTIA for any additions of new gTLDs to the DNS. See Kevin Murphy,
“US upset with ICANN over .xxx,” Domain Incite, March 20, 2011, available at http://domainincite.com/us-upsetwith-
icann-over-xxx/.
India and Saudi Arabia have stated their intention to block the .xxx domain. See “xxx addresses open for business,” The
Times of India, April 19, 2011, available at http://articles.timesofindia.indiatimes.com/2011-04-19/computing/
29446429_1_icann-suffix-websites.
24 Kevin Murphy, “Europe asked US to delay .xxx,” Domain Incite, May 5, 2011, available at http://domainincite.com/
europe-did-ask-the-us-to-delay-xxx/.
25Letter from Lawrence Strickling to Neelie Kroes, “Strickling letter to Kroes re: dot-xxx,” .nxt, April 20, 2011,
available at http://news.dot-nxt.com/2011/04/20/strickling-letter-kroes-xxx.
26 Ibid.
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gTLD Expansion
Top Level Domains (TLDs) are the suffixes that appear at the end of an address (after the “dot”).
Prior to ICANN’s establishment in 1998, the Internet had eight generic top level domains
(gTLDs), including .com, .org, .net, and .gov. In 2000 and 2004, ICANN held application rounds
for a limited number of new gTLDs—currently there are twenty-two. Some are reserved or
restricted to particular types of organizations (e.g., .museum, .gov, .travel) and others are open for
registration by anyone (.com, .org, .info). Applicants for new gTLDs are typically commercial
entities and non-profit organizations who seek to become ICANN-recognized registries that will
establish and operate name servers for their TLD registry, as well as implement a domain name
registration process for that particular TLD.
The growth of the Internet and the accompanying growth in demand for domain names have
focused the debate on whether and how to further expand the number of gTLDs. Beginning in
2005, ICANN embarked on a long consultative process to develop rules and procedures for
introducing and adopting an indefinite number of new gTLDs into the domain name system. A
new gTLD can be any word or string of characters that is applied for and approved by ICANN.
Between 2008 and 2011, ICANN released seven iterations of its gTLD Applicant Guidebook
(essentially the rulebook for how the new gTLD program will be implemented). On June 20,
2011, the ICANN Board of Directors voted to approve the launch of the new gTLD program,
under which potentially hundreds of new gTLDs could ultimately be approved by ICANN and
introduced into the DNS. Applications for new gTLDs were to be accepted from January 12
through April 12, 2012.
The rollout of new gTLDs was controversial. Advocates (including the domain name industry)
argued that a gTLD expansion will provide opportunities for Internet innovation and competition.
On the other hand, many trademark holders pointed to possible higher costs and greater
difficulties in protecting their trademarks across hundreds of new gTLDs. Similarly, governments
expressed concern over intellectual property protections, and along with law enforcement entities,
also cited concerns over the added burden of combating various cybercrimes (such as phishing
and identity theft) across hundreds of new gTLDs. Throughout ICANN’s policy development
process, governments, through the Governmental Advisory Committee, advocated for additional
intellectual property protections in the new gTLD process. The GAC also argued for more
stringent rules that would allow for better law enforcement in the new domain space to better
protect consumers. Although changes were made, strong opposition from many trademark
holders27 led to opposition from some parts of the U.S. government towards the end of 2011. For
example:
• On December 8, 2011, the Senate Committee on Commerce, Science and
Transportation held a hearing on the ICANN’s expansion of TLDs. Subsequently,
on December 28, 2011, a letter from Senator John Rockefeller, Chairman of the
Senate Committee on Commerce, Science and Transportation, to the Secretary of
Commerce and the Administrator of NTIA, stated his concern that “this
expansion of gTLDs, if it proceeds as planned, will have adverse consequences
for the millions of American consumers, companies, and non-profit organizations
that use the Internet on a daily basis” and that at the hearing, “witnesses speaking
27 The Association of National Advertisers (ANA) has been a leading voice against ICANN’s current rollout of the new
gTLD program. See ANA webpage, “Say No to ICANN: Generic Top Level Domain Developments,” available at
http://www.ana.net/content/show/id/icann.
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on behalf of more than a hundred companies and non-profit organizations
explained that ICANN’s current plan for gTLD expansion will likely cause
millions of dollars in increased costs related to combating cybersquatting.” In the
letter, Senator Rockefeller requested that NTIA “should consider asking ICANN
to either delay the opening of the application period or to drastically limit the
number of new gTLDs it approves next year.”28 A subsequent December 22,
2011, letter to ICANN from Senators Klobuchar and Ayotte, also registered
concern over the TLD expansion and asked ICANN to further address law
enforcement, trademark, and consumer concerns before launching the program.29
• On December 14, 2011, the House Committee on Energy and Commerce,
Subcommittee on Communications and Technology, held a hearing on ICANN’s
top level domain program. Subsequently on December 21, 2011, a bipartisan
group of Committee Members sent a letter to ICANN requesting that the
expansion of the gTLDs be delayed, noting that “many stakeholders are not
convinced that ICANN’s process has resulted in an acceptable level of
protection.”30 The Energy and Commerce Committee Members argued that “a
short delay will allow interested parties to work with ICANN and offer changes
to alleviate many of them, specifically concerns over law enforcement, cost and
transparency that were discussed in recent Congressional hearings.”31
• A December 16, 2011, letter to the Secretary of Commerce from Representative
Bob Goodlatte, Chairman of the House Subcommittee on Intellectual Property,
Competition, and the Internet, and Representative Howard Berman, Ranking
Member of the House Committee on Foreign Affairs, urged DOC to take all steps
necessary to encourage ICANN to undertake further evaluation and review
before the gTLD expansion is permitted to occur. The letter asked DOC to
determine whether the benefits of the expansion outweigh the costs and risks to
consumers, businesses, and the Internet, and that if the program proceeds, that
ICANN should initially limit the expansion to a small pilot project which can be
evaluated.32 Previously, the Subcommittee on Intellectual Property, Competition,
and the Internet had held a May 4, 2011, hearing on oversight of the gTLD
program.
• A December 16, 2011, letter from the Federal Trade Commission (FTC) to
ICANN argued that a “rapid, exponential expansion of gTLDs has the potential
to magnify both the abuse of the domain name system and the corresponding
challenges we encounter in tracking down Internet fraudsters.” The FTC urged
ICANN to implement the new gTLD program as a pilot program and
28 See “Rockefeller Says Internet Domain Expansion Will Hurt Consumers, Businesses, and Non-Profits—Urges
Delay,” Press Release, Senate Committee on Commerce, Science and Transportation, December 28, 2011, available at
http://commerce.senate.gov/public/index.cfm?p=PressReleases.
29 Letter from Senator Amy Klobuchar and Senator Kelly Ayotte to ICANN, December 22, 2011, available at
http://www.icann.org/en/correspondence/klobuchar-ayotte-to-beckstrom-crocker-22dec11-en.pdf.
30 House Committee on Energy and Commerce, “Committee Urges ICANN to Delay Expansion of Generic Top-Level
Domain Program,” Press Release, December 21, 2011, available at http://energycommerce.house.gov/news/
PRArticle.aspx?NewsID=9176.
31 Ibid.
32 Letter from Representative Goodlatte and Representative Berman to the Secretary of Commerce, December 16,
2011, available at http://www.icann.org/en/correspondence/goodlatte-berman-to-bryson-16dec11-en.pdf.
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substantially reduce the number of gTLDs that are introduced in the first
application round, strengthen ICANN’s contractual compliance program, develop
a new ongoing program to monitor consumer issues that arise during the first
round of implementing the new gTLD program, conduct an assessment of each
new proposed gTLD’s risk of consumer harm as part of the evaluation and
approval process, and improve the accuracy of WHOIS data, including by
imposing a registrant verification requirement. The FTC added that “ICANN
should address these issues before it approves any new gTLD applications. If
ICANN fails to address these issues responsibly, the introduction of new gTLDs
could pose a significant threat to consumers and undermine consumer confidence
in the Internet.”33
• A December 27, 2011, letter to ICANN from the Senate and House Judiciary
Committees expressed concerns over the new gTLD program and urged ICANN
to “strengthen protections for consumers and trademark holders who risk being
harmed by the proliferation of domain names on the web.” The letter also urged
ICANN to work closely with the law enforcement community “to ensure that the
program’s rollout does not adversely impact their efforts to fight fraud and abuse
on the Internet.”34
At the December 2011 House and Senate hearings, ICANN stated its intention to proceed with
the gTLD expansion as planned. ICANN defended its gTLD program, arguing that the new
gTLDs will offer more protections for consumers and trademark holders than current gTLDs; that
new gTLDs will provide needed competition, choice, and innovation to the domain name system;
and that critics have already had ample opportunity to contribute input during a seven-year
deliberative policy development process.35 Ultimately, ICANN did not delay the initiation of the
new gTLD program, and the application window was opened on January 12, 2012, as planned.
Much of the pressure on ICANN to delay the new gTLD program was directed at NTIA, given
NTIA’s unique relationship with ICANN. At both the December 2011 Senate and House hearings,
NTIA expressed support for ICANN’s planned rollout of the TLD expansion program, arguing
that national governments have been able to address intellectual property, law enforcement, and
consumer concerns through the Governmental Advisory Committee (GAC):
NTIA believes that ICANN improved the new gTLD program by incorporating a significant
number of proposals from the GAC. ICANN’s new gTLD program also now provides law
enforcement and consumer protection authorities with significantly more tools than those
available in existing gTLDs to address malicious conduct. The fact that not all of the GAC’s
33 Letter from FTC to ICANN, December 16, 2011, available at http://www.ftc.gov/os/closings/publicltrs/111216letterto-
icann.pdf.
34 Letter from the Chairmen and Ranking Members of the Senate and House Judiciary Committees to Rod Beckstrom,
CEO, ICANN, December 27, 2011, available at http://www.icann.org/en/correspondence/leahy-to-beckstrom-27dec11-
en.pdf.
35 Testimony of Kurt Pritz, Senior Vice President, ICANN, before the House Committee on Energy and Commerce,
Subcommittee on Communications and Technology, December 14, 2011, available at
http://republicans.energycommerce.house.gov/Media/file/Hearings/Telecom/121411/Pritz.pdf. The gTLD expansion is
also strongly supported by many in the Internet and domain name industry, see letter to Senator Rockefeller and
Senator Hutchison at http://news.dot-nxt.com/sites/news.dot-nxt.com/files/gtld-industry-to-congress-gtlds-8dec11.pdf.
Internet Governance and the Domain Name System: Issues for Congress
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proposals were adopted as originally offered does not represent a failure of the process or a
setback to governments; rather, it reflects the reality of a multi-stakeholder model.36
While NTIA stated that it would continue to monitor progress and push for necessary changes to
ICANN’s TLD expansion program, a key aspect of NTIA’s argument for supporting ICANN’s
planned rollout was to preserve the integrity of the multistakeholder Internet governance process:
NTIA is dedicated to maintaining an open, global Internet that remains a valuable tool for
economic growth, innovation, and the free flow of information, goods, and services online.
We believe the best way to achieve this goal is to continue to actively support and participate
in multi-stakeholder Internet governance processes such as ICANN. This is in stark contrast
to some countries that are actively seeking to move Internet policy to the United Nations. If
we are to combat the proposals put forward by others, we need to ensure that our multistakeholder
institutions have provided a meaningful role for governments as stakeholders.
NTIA believes that the strength of the multi-stakeholder approach to Internet policy-making
is that it allows for speed, flexibility, and decentralized problem-solving and stands in stark
contrast to a more traditional, top-down regulatory model characterized by rigid processes,
political capture by incumbents, and in so many cases, impasse or stalemate.37
On January 3, 2012, NTIA sent ICANN a letter concerning implementation of the new gTLD
program.38 While NTIA recognized that the program “is the product of a six-year international
multistakeholder process” and that NTIA does “not seek to interfere with the decisions and
compromises reached during that process,” NTIA urged ICANN to consider implementing
measures to address many of the criticisms raised. Such measures would address concerns of
trademark holders, law enforcement, and consumer protection. NTIA also asked ICANN to assess
(after the initial application window closes and the list of prospective new gTLDs is known)
whether there is a need to phase in the introduction of new gTLDs, and whether additional
trademark protection measures need to be taken.
NTIA concluded its letter as follows:
How ICANN handles the new gTLD program will, for many, be a litmus test of the viability
of this approach. For its part, NTIA is committed to continuing to be an active member of the
GAC and working with stakeholders to mitigate any unintended consequences of the new
gTLD program.39
On June 13, 2012, ICANN announced it had received 1,930 applications for new gTLDs,40 and
ICANN has now moved into the evaluation phase; ICANN will decide whether or not to accept
each of the 1,930 new gTLD applications. With the first round application period concluded,
there remain significant issues in play as the new gTLD program goes forward. First, ICANN has
36 Testimony of Fiona M. Alexander, Associate Administrator, NTIA, before the House Committee on Energy and
Commerce, Subcommittee on Communications and Technology, December 14, 2011, available at
http://www.ntia.doc.gov/speechtestimony/2011/testimony-associate-administrator-alexander-icann-s-top-level-domainname-
progr.
37 Ibid.
38 Letter from Lawrence Strickling, Assistant Secretary for Communications and Information, U.S. Department of
Commerce, to ICANN, January 3, 2012, available at http://www.ntia.doc.gov/other-publication/2012/ntia-letterregarding-
gtld-program.
39 Ibid.
40 A complete list of new gTLD applications is provided at http://newgtlds.icann.org/en/program-status/applicationresults/
strings-1200utc-13jun12-en.
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stated that a second and subsequent round will take place, and that changes to the application and
evaluation process will be made such that a “systemized manner of applying for gTLDs be
developed in the long term.”41 ICANN’s goal is to begin the second application round “within one
year of the close of the application submission period for the initial round.”42 Thus, many
observers are eager to see what changes may be made in the second round.
Second, when the new gTLDs go “live” sometime in 2013, many stakeholders are concerned that
various forms of domain name abuse (e.g., trademark infringement, consumer fraud, malicious
behavior, etc.) could manifest itself within the hundreds of new gTLD domain spaces. Thus, the
effectiveness of ICANN’s approach to addressing such issues as intellectual property protection
of second level domain names and mitigating unlawful behavior in the domain name space will
be of interest as the new gTLD program goes forward.
With respect to the new gTLD program, the GAC will provide advice to the ICANN Board on
any first round applications the GAC considers problematic. GAC advice is expected to be issued
at the 46th ICANN Board meeting in Beijing, China, in April 2013. GAC advice can take three
forms:
I. The GAC advises ICANN that it is the consensus of the GAC that a particular application
should not proceed. This will create a strong presumption for the ICANN Board that the
application should not be approved.
II. The GAC advises ICANN that there are concerns about a particular application “dotexample.”
The ICANN Board is expected to enter into dialogue with the GAC to understand
the scope of concerns. The ICANN Board is also expected to provide a rationale for its
decision.
III. The GAC advises ICANN that an application should not proceed unless remediated. This
will raise a strong presumption for the Board that the application should not proceed unless
there is a remediation method available in the Guidebook (such as securing the approval of
one or more governments), that is implemented by the applicant.43
The GAC can also issue an Early Warning to the ICANN Board in the event that any GAC
member finds an application problematic for any reason. An Early Warning is an indication that a
formal GAC objection is possible (either through the GAC advice process or through the formal
objection process). Applicants are notified of an Early Warning against their application and
given the opportunity to address the concerns or to withdraw the application (thereby qualifying
for a partial refund of the application fee).
Proposed Models for Internet Governance
As discussed above, ICANN is a working example of a multistakeholder model of Internet
governance, whereby a bottom-up collaborative process is used to provide Internet stakeholders
with access to the policymaking process. Support for the multistakeholder model of Internet
governance is reflected in international organizations such as the Organisation for Economic Co-
41 ICANN, New gTLD Applicant Guidebook, June 4, 2012, Module 1, p. 1-21, available at http://newgtlds.icann.org/en/
applicants/agb.
42 Ibid.
43 Ibid., Module 3, p. 3-3.
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operation and Development (OECD) and the Group of Eight (G8). For example, the OECD’s
Communiqué on Principles for Internet Policy-Making cites multistakeholderism as a central
tenet of Internet governance:
In particular, continued support is needed for the multi-stakeholder environment, which has
underpinned the process of Internet governance and the management of critical Internet
resources (such as naming and numbering resources) and these various stakeholders should
continue to fully play a role in this framework. Governments should also work in multistakeholder
environments to achieve international public policy goals and strengthen
international co-operation in Internet governance.44
Similarly, at the G8 Summit of Deauville on May 26-27, 2011, the G8 issued a declaration on its
renewed commitment for freedom and democracy that contained a new section on the Internet.
Support for a multistakeholder model for Internet governance with a significant national
government role was made explicit:
As we support the multi-stakeholder model of Internet governance, we call upon all
stakeholders to contribute to enhanced cooperation within and between all international fora
dealing with the governance of the Internet. In this regard, flexibility and transparency have
to be maintained in order to adapt to the fast pace of technological and business
developments and uses. Governments have a key role to play in this model.45
As discussed above, in 2005, the World Summit on the Information Society (WSIS) considered
four models of Internet governance, of which three would have involved an intergovernmental
body to oversee the Internet and the domain name system. While the WSIS ultimately decided not
to pursue an intergovernmental model in 2005, some nations have again advocated an
intergovernmental approach for Internet governance. For example:
• India, Brazil, and South Africa (referred to as IBSA) proposed that “an
appropriate body is urgently required in the U.N. system to coordinate and evolve
coherent and integrated global public policies pertaining to the Internet.” The
IBSA proposed body would “integrate and oversee the bodies responsible for
technical and operational functioning of the Internet, including global standards
setting.”46
• In order to implement the major aspects of the IBSA proposal, the government of
India proposed (in the U.N. General Assembly) the establishment of a new
institutional mechanism in the United Nations for global internet-related policies,
to be called the United Nations Committee for Internet-Related Policies (CIRP).
CIRP would be comprised of 50 member states chosen on the basis of equitable
geographical representation. The Internet Governance Forum (IGF) and four
advisory stakeholder groups would provide input to CIRP, which would report
directly to the General Assembly and present recommendations for consideration,
44 Organisation for Economic Co-operation and Development, OECD High Level Meeting, The Internet Economy:
Generating Innovation and Growth, Communique on Principles for Internet Policy-Making, June 28-29, 2011, p. 4,
available at http://www.oecd.org/dataoecd/33/12/48387430.pdf.
45 G8 Declaration, Renewed Commitment for Freedom and Democracy, G8 Summit of Deauville, May 26-27, 2011,
available at http://www.g20-g8.com/g8-g20/g8/english/live/news/renewed-commitment-for-freedom-anddemocracy.
1314.html.
46 IBSA Multistakeholder meeting on Global Internet Governance, Recommendations, September 1-2, 2011 at Rio de
Janeiro, Brazil, available at http://www.culturalivre.org.br/artigos/IBSA_recommendations_Internet_Governance.pdf.
Internet Governance and the Domain Name System: Issues for Congress
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adoption, and dissemination among all relevant intergovernmental bodies and
international organizations.47
• Another group of nations, including China and the Russian Federation, proposed
a voluntary “International Code of Conduct for Information Security,” for further
discussion in the U.N. General Assembly. The Code includes language that
promotes the establishment of a multilateral, transparent, and democratic
international management system to ensure an equitable distribution of resources,
facilitate access for all, and ensure a stable and secure functioning of the
Internet.48
Thus, governments such as the United States and the European Union support ICANN’s
multistakeholder model, while at the same time advocating increased governmental influence
within that model.49 By contrast, other nations support an expanded role for an intergovernmental
model of Internet governance. The debate has been summarized by NTIA as follows:
By engaging all interested parties, multistakeholder processes encourage broader and more
creative problem solving, which is essential when markets and technology are changing as
rapidly as they are. They promote speedier, more flexible decision making than is common
under traditional, top-down regulatory models which can too easily fall prey to rigid
procedures, bureaucracy, and stalemate. But there is a challenge emerging to this model in
parts of the world.... Some nations appear to prefer an Internet managed and controlled by
nation-states. In December 2012, the U.S. will participate in the ITU’s World Conference on
International Telecommunications (WCIT). This treaty negotiation will conduct a review of
the International Telecommunication Regulations (ITRs), the general principles which relate
to traditional international voice telecommunication services. We expect that some states will
attempt to rewrite the regulation in a manner that would exclude the contributions of multistakeholder
organizations and instead provide for heavy-handed governmental control of the
Internet, including provisions for cybersecurity and granular operational and technical
requirements for private industry. We do not support any of these elements. It is critical that
we work with the private sector on outreach to countries to promote the multi-stakeholder
model as a credible alternative.50
47 The CIRP proposal is available at http://igfwatch.org/discussion-board/indias-proposal-for-a-un-committee-forinternet-
related-policies-cirp.
48 United Nations General Assembly, Sixty-sixth session, Item 93 of the provisional agenda, Developments in the field
of information and telecommunications in the context of international security, “Letter dated 12 September 2011 from
the Permanent Representatives of China, the Russian Federation, Tajikistan, and Uzbekistan to the United Nations
addressed to the Secretary-General,” September 14, 2011, A/66/359, available at http://blog.internetgovernance.org/
pdf/UN-infosec-code.pdf.
49 The European Commission has been a particularly strong voice in favor of significantly increasing GAC influence on
the ICANN policy process. See Kieren McCarthy, “European Commission calls for greater government control over
Internet,” .nxt, August 31, 2011, available at http://news.dot-nxt.com/2011/08/31/ec-greater-government-control.
50 Remarks by Lawrence Strickling, Assistant Secretary of Commerce for Communications and Information, National
Telecommunications and Information Administration, Department of Commerce, before the PLI/FCBA
Telecommunications Policy & Regulation Institute, Washington, DC, December 8, 2011, available at
http://www.ntia.doc.gov/speechtestimony/2011/remarks-assistant-secretary-strickling-practising-law-institutes-29thannual-
te.
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World Conference on International Telecommunications (WCIT)
The World Conference on International Telecommunications (WCIT) was held in Dubai on
December 3-14, 2012. Convened by the International Telecommunications Union (the ITU, an
agency within the United Nations), the WCIT was a formal meeting of the world’s national
governments held in order to revise the International Telecommunications Regulations (ITRs).
The ITRs, previously revised in 1988, serve as a global treaty outlining the principles which
govern the way international telecommunications traffic is handled.
Because the existing twenty-four year old ITRs predated the Internet, one of the key policy
questions in the WCIT was how and to what extent the updated ITRs should address Internet
traffic and Internet governance. The Administration and Congress took the position that the new
ITRs should continue to address only traditional international telecommunications traffic, that a
multistakeholder model of Internet governance (such as ICANN) should continue, and that the
ITU should not take any action that could extend its jurisdiction or authority over the Internet.
As the WCIT approached, concerns heightened in the 112th Congress that the WCIT might
potentially provide a forum leading to an increased level of intergovernmental control over the
Internet. On May 31, 2012, the House Committee on Energy and Commerce, Subcommittee on
Communications and Technology, held a hearing entitled, “International Proposals to Regulate
the Internet.”51 To accompany the hearing, H.Con.Res. 127 was introduced by Representative
Bono Mack expressing the sense of Congress regarding actions to preserve and advance the
multistakeholder governance model. Specifically, H.Con.Res. 127 expressed the sense of
Congress that the Administration “should continue working to implement the position of the
United States on Internet governance that clearly articulates the consistent and unequivocal policy
of the United States to promote a global Internet free from government control and preserve and
advance the successful multistakeholder model that governs the Internet today.” H.Con.Res. 127
was passed unanimously by the House (414-0) on August 2, 2012.
A similar resolution, S.Con.Res. 50, was introduced into the Senate by Senator Rubio on June 27,
2012, and referred to the Committee on Foreign Relations. The Senate resolution expressed the
sense of Congress “that the Secretary of State, in consultation with the Secretary of Commerce,
should continue working to implement the position of the United States on Internet governance
that clearly articulates the consistent and unequivocal policy of the United States to promote a
global Internet free from government control and preserve and advance the successful
multistakeholder model that governs the Internet today.” S.Con.Res. 50 was passed by the Senate
by unanimous consent on September 22, 2012. On December 5, 2012—shortly after the WCIT
had begun in Dubai—the House unanimously passed S.Con.Res. 50 by a vote of 397-0.
During the WCIT, a revision to the ITRs was proposed and supported by Russia, China, Saudi
Arabia, Algeria, and Sudan that sought to explicitly extend ITR jurisdiction over Internet traffic,
infrastructure, and governance. Specifically, the proposal stated that “Member States shall have
the sovereign right to establish and implement public policy, including international policy, on
matters of Internet governance.”52 The proposal also included an article establishing the right of
Member States to manage Internet numbering, naming, addressing, and identification resources.
51 Available at http://energycommerce.house.gov/hearings/hearingdetail.aspx?NewsID=9543.
52 See Article 3A , “Proposals for the Work of the Conference,” available at http://files.wcitleaks.org/public/
Merged%20UAE%20081212.pdf.
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The proposal was subsequently withdrawn. However, as an intended compromise, the ITU
adopted a nonbinding resolution (Resolution 3, attached to the final ITR text) entitled, “To Foster
an enabling environment for the greater growth of the Internet.” Resolution 3 includes language
stating “all governments should have an equal role and responsibility for international Internet
governance” and invites Member States to “elaborate on their respective positions on
international Internet-related technical, development and public policy issues within the mandate
of ITU at various ITU forums.... ”53
Because of the inclusion of Resolution 3, along with other features of the final ITR text (such as
new ITU articles related to spam and cybersecurity), the United States declined to sign the treaty.
The leader of the U.S. delegation stated the following:
The Internet has given the world unimaginable economic and social benefits during these
past 24 years—all without UN regulation. We candidly cannot support an ITU treaty that is
inconsistent with a multi-stakeholder model of Internet governance. As the ITU has stated,
this conference was never meant to focus on internet issues; however, today we are in a
situation where we still have text and resolutions that cover issues on spam and also
provisions on internet governance. These past two weeks, we have of course made good
progress and shown a willingness to negotiate on a variety of telecommunications policy
issues, such as roaming and settlement rates, but the United States continues to believe that
internet policy must be multi-stakeholder driven. Internet policy should not be determined by
member states but by citizens, communities, and broader society, and such consultation from
the private sector and civil society is paramount. This has not happened here.54
Of the 144 eligible members of the ITU, 89 nations signed the treaty, while 55 either chose not to
sign (such as the United States) or remain undecided.55 While the WCIT in Dubai is concluded,
the international debate over Internet governance is expected to continue in future
intergovernmental telecommunications meetings and conferences.
Issues for Congress
Congress plays an important role overseeing NTIA’s stewardship of the domain name system and
ICANN. The House Committee on Energy and Commerce and the Senate Committee on
Commerce, Science, and Transportation have held numerous oversight hearings exploring
ICANN’s performance in general, as well as specific DNS issues that arise (e.g., the proposed
gTLD expansion). Additionally, other committees, such as the House and Senate Judiciary
Committees, maintain an interest in the DNS as it affects Internet policy issues such as
intellectual property, privacy, and cybercrime. Since 1997, congressional committees have held
31 hearings on the DNS and ICANN.56
53 International Telecommunications Union, Final Acts, World Conference on International Telecommunications,
Dubai, 2012, Resolution 3, p. 20, available at http://www.itu.int/en/wcit-12/Documents/final-acts-wcit-12.pdf.
54 Statement delivered by Ambassador Terry Kramer from the floor of the WCIT, December 13, 2012. U.S. Department
of State, Press Release, “U.S. Intervention at the World Conference on International Telecommunications,” December
13, 2012, available at http://www.state.gov/r/pa/prs/ps/2012/12/202037.htm.
55 The official ITU list of signatories and non-signatories is at http://www.itu.int/osg/wcit-12/highlights/
signatories.html.
56 For a complete list, see the Appendix in CRS Report 97-868, Internet Domain Names: Background and Policy
Issues, by Lennard G. Kruger.
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Congress has an impact on the issue of Internet governance, both via its oversight of NTIA and
the DNS, and through its actions in other and more specific areas of Internet policymaking. For
example, Congress continues to oversee and evaluate NTIA’s strategy of supporting ICANN’s
multistakeholder model while opposing arguments for increased intergovernmental control. At the
same time, NTIA is seeking to maximize government influence within the ICANN process
(primarily through the GAC), especially in instances where Internet policy intersects with
national laws addressing such issues as intellectual property, privacy, law enforcement, and
cybersecurity.
One of NTIA’s arguments for increasing government influence over ICANN policymaking (via
the GAC) is that if governments feel their interests are not adequately addressed within the
ICANN process, this perception will give support to the argument that the DNS and the Internet
should be governed through a more formal intergovernmental mechanism. Congress may wish to
examine where an appropriate balance exists between a sufficient level of governmental influence
within the ICANN system, and an inappropriately excessive level of governmental control
through the GAC that might threaten the multistakeholder model that ICANN represents.
To the extent that ICANN is successful in its endeavors and its credibility remains strong with
Internet stakeholders, the argument for a multistakeholder model of Internet governance will be
bolstered. By contrast, to the extent that ICANN falls short, the arguments for a growing role for
some sort of formal intergovernmental body could become stronger. The following are some
important issues that the 113th Congress may wish to consider as part of its oversight of NTIA’s
relationship with ICANN:
• How transparent and accountable is the ICANN governance structure, and to
what extent do all Internet stakeholders have equal access to and influence over
the ICANN policymaking process?
• How effectively does ICANN balance the interests and positions of differing
stakeholders on particularly controversial issues, such as the new gTLD
program? How successful will be the rollout of the gTLD program and other
high-profile initiatives in the future?
• Regarding the Board of Directors and the ICANN staff, to what extent are
sufficient ethics safeguards in place to prevent special interests (who may, for
example, have financial interests at stake) from exerting undue influence over
ICANN policy decisions?57
• Should the U.S. government maintain its current legacy authority over ICANN
and the DNS, and if so, how can NTIA best use this authority judiciously in order
to advance U.S. government interests, while at the same time minimizing the
perception by other nations (as well as the international community of Internet
stakeholders) that the United States has an inappropriate level of control or
influence over the Internet and the DNS?
• To what extent will ongoing and future intergovernmental telecommunications
conferences (such as the December 2012 WCIT) constitute an opportunity for
57 See for example: Press Release of Senator Ron Wyden, “Wyden Calls for Ethics Rules to Prevent Revolving Door
for Internet Domain Name Regulators,” September 14, 2011, available at http://wyden.senate.gov/newsroom/press/
release/?id=2e414e69-1250-4ca3-ae6b-2b6091ed52cc.
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Congressional Research Service 20
some nations to increase intergovernmental control over the Internet, and how
effectively are NTIA and other government agencies (such as the State
Department) working to counteract that threat?
Congress may also have a collateral impact on the debate over Internet governance through
legislative activity related to specific areas of national Internet policy. For example, in the 112th
Congress, provisions intended to protect intellectual property in the Preventing Real Online
Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP or PIPA, S.
968) and the Stop Online Piracy Act (SOPA, H.R. 3261) sought to prohibit Internet service
providers from directing Internet traffic to domain names with infringing content.58 One of the
arguments against the legislation was that any imposition of U.S. restrictions on the functioning
of the DNS will, in the long run, undermine the integrity of the current multistakeholder model of
Internet governance and give ammunition to those arguing for a formal intergovernmental body
overseeing the Internet. For SOPA/PIPA and other Internet-related legislation, Congress may
weigh arguable Internet governance impacts within the context of other arguments for and against
the legislation. But the impact of domestic Internet laws and regulations on the overall Internet
governance debate is an issue that may increasingly be considered by Congress.
Finally, the debate over how the Internet’s domain name system is governed may have a
significant impact on future debates on how other Internet policy areas are governed on a
worldwide basis.59 The ultimate success or failure of ICANN, and the multistakeholder model of
Internet governance it represents, could help determine how other Internet policy issues—such as
cybersecurity and privacy—are addressed.
58 See CRS Report R42112, Online Copyright Infringement and Counterfeiting: Legislation in the 112th Congress, by
Brian T. Yeh.
59 See for example: The White House, International Strategy for Cyberspace: Prosperity, Security, and Openness in a
Networked World, May 2011, p. 21-22, available at http://www.whitehouse.gov/sites/default/files/rss_viewer/
international_strategy_for_cyberspace.pdf.
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Appendix. ICANN Basics
ICANN is a not-for-profit public benefit corporation headquartered in Marina del Rey, CA, and
incorporated under the laws of the state of California. ICANN is organized under the California
Nonprofit Public Benefit Law for charitable and public purposes, and as such, is subject to legal
oversight by the California attorney general. ICANN has been granted tax-exempt status by the
federal government and the state of California.60
ICANN’s organizational structure consists of a Board of Directors (BOD) advised by a network
of supporting organizations and advisory committees that represent various Internet
constituencies and interests (see Figure A-1). Policies are developed and issues are researched by
these subgroups, who in turn advise the Board of Directors, which is responsible for making all
final policy and operational decisions. The Board of Directors consists of 15 international and
geographically diverse members, composed of one president, eight members selected by a
Nominating Committee, two selected by the Generic Names Supporting Organization, two
selected by the Address Supporting Organization, and two selected by the Country-Code Names
Supporting Organization. Additionally, there are six non-voting liaisons representing other
advisory committees.
The explosive growth of the Internet and domain name registration, along with increasing
responsibilities in managing and operating the DNS, has led to marked growth of the ICANN
budget, from revenues of about $6 million and a staff of 14 in 2000, to revenues of $90 million
and a staff of 149 forecasted for 2012.61 ICANN is funded primarily through fees paid to ICANN
by registrars and registry operators. Registrars are companies (e.g., GoDaddy, Google, Network
Solutions) with which consumers register domain names.62 Registry operators are companies and
organizations that operate and administer the master database of all domain names registered in
each top level domain (for example VeriSign, Inc. operates .com and .net, Public Interest Registry
operates .org, and Neustar, Inc. operates .biz).63 In 2011, ICANN received 94% of its total
revenues from registry and registrar fees (49% from registry fees, 45% from registrar fees).64
Additionally, the collection of fees from the new generic top level domain (gTLD) program could
contribute to an unprecedented level of revenue for ICANN in the years to come. For the first
round of the new gTLD program, ICANN estimates revenues of $337 million from the new
gTLD application fees, which is twice the amount of traditional revenues from all other sources
over the next two years. After operating expenses (processing and evaluating the applications),
ICANN estimates a surplus of $27.8 million from the new gTLD program.65
60 ICANN, 2008 Annual Report, December 31, 2008, p. 24, available at http://www.icann.org/en/annualreport/annualreport-
2008-en.pdf.
61 ICANN, FY13 Operating Plan and Budget, June 24, 2012, available at http://www.icann.org/en/about/financials.
62 A list of ICANN-accredited registrars is available at http://www.icann.org/en/registries/agreements.htm.
63 A list of current agreements between ICANN and registry operators is available at http://www.icann.org/en/
registries/agreements.htm.
64 ICANN Financials Dashboard, updated June 15, 2011, available at https://charts.icann.org/public/index-financefy11.
html.
65 ICANN, FY13 Operating Plan and Budget, June 24, 2012, p. 61, available at http://www.icann.org/en/news/
announcements/announcement-13jul12-en.htm.
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Figure A-1. Organizational Structure of ICANN
Source: ICANN; http://www.icann.org/en/structure/.

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