Note to Obama Administration: Please Reform the NTIA-ICANN Relationship.

One of the sad legacies of the Clinton Administration is the never ending circus of internet governance known as the Internet Corporation for Assigned Names and Numbers, or ICANN. The idea, in those optimistic “anything not government is good” days, was to insulate management of the domain name system (DNS) from politics by setting up a structure outside government to handle the name and number system of the internet. The notion was that you could take a critical foundation of the internet’s architecture, on which a company called “Network Solutions” had built a huge business on maintaining a friggin’ database, and prevent people from trying to control it by moving it out of big bad government and into a noble non-profit corporation. As a double protection, they expressly limited ICANN’s mission to “technical coordination” via “private contracts” and absolutely not, not, NOT governance. Oh, and fixing trademark and cyberquatting issues. And having governments involved via the “Government Accountability Committee” (GAC). And creating competition in the domain name registration biz. And DNS security. But other than that, no governance.

Some of us at the time warned (a) that there was nothing magic about government v. non-government, control over a critical resource just about ensured that government-like stuff would happen, (b) you can’t be “no governance, just technical coordination, except whatever” anymore than you can be “absolutely all abstinence except for the no sex part,” and (c) Anyone who thought governments — including the U.S. government — would just let DNS go its merry way and limit input to an “advisory committee” for a “technical coordination body.”

Guess what? Turns out we were right. So now the Obama Administration gets to inherit the perennial problem of how to deal with all the conflicting interests around ICANN and management of the DNS system — a most unrewarding job given the number of conflicting interests and the fact that while the issue is potentially of significant importance to the smooth management of the internet, the actual pay off for any specific decision is pathetically puny compared to the massive headache caused by making a final decision. Which is why this has festered for ten years.

A bit more, and an outrageously simple suggestion, below . . .

So now, 10 years after NTIA approved the “privatization” of ICANN, ICANN has ballooned into an organization with a budget in the tens of millions derived primarily from what amount to regulatory fees. Stakeholders routinely play all the usual stakeholder games that make regulatory processes such a joy. Nor did the “pin governments down and limit their influence” strategy work. Governments — especially the U.S. government — wield influence in ICANN both directly through ICANN’s processes and indirectly via relationships with staff. Worse, the U.S. government keeps a trump card over ICANN in the form of its constantly renewed contracts which give the USG final say over any major ICANN decisions and give the USG the theoretical power to reassign ICANN’s functions to someone else. This gives the USG an ungodly amount of influence over ICANN which absolutely guarantees that every non-U.S. country and most non-U.S. stakeholders will never fully trust ICANN or regard it as a neutral decisionmaker.

Case in point, the recent letter from NTIA and Department of Justice basically telling ICANN that, after two years of futzing around on a process to add more generic top level domains (gTLDs), NTIA has weighed in on the side of the intellectual property mafia and law enforcement interests that have resisted the idea of a regular process for the introduction of new gTLDs. While one might think that this last hurrah from the exiting Bush Administration would have little impact, the unique position of power NTIA enjoys vis-a-vis ICANN guarantees that this will throw ICANN into a state of paralysis until NTIA signals that policy has changed and that it is OK to start thinking about a a process for adding new gTLDs. Meanwhile, stakeholder interests from all sides will frantically lobby whoever takes over at NTIA, because — despite all the rhetoric and contracts and pretend that NTIA is not the final decisionmaker on all things ICANN — everyone knows NTIA is the final decisionmaker on all things ICANN.

To make this dysfunctional process even worse, whoever gets appointed to head up NTIA is unlikely to consider ICANN a major deal. From a U.S. policy perspective, the important things about NTIA are: (a) management of federal spectrum; (c) lingering issues around the DTV transition; and, (b) any role in developing statistics or administering grant programs related to broadband or other telecommunications services in the U.S. While the Bush Administration defunded programs like the Technology Opportunity Program (TOP), and stopped issuing reports on electronic commerce and the digital divide because it was much easier to just say everything was hunky-dory, I am hopeful that this will change under Obama. So whoever is selected to run NTIA (and did I mention I am available after January 31?) is going to have (hopefully) some really huge issues on domestic telecom policy and infrstructure buildout. Dealing with ICANN — with its massive nest of powerful stakeholders and absolutely no good solution — is going to be as tempting as canceling one’s holiday plans to have root canal.

Nevertheless, I hope the Obama people make a stab at getting the problem of ICANN and its thorny relationship with the USG resolved once and for all (at least, as much as anything in policyland can ever be resolved once and for all). Back in 2006, I testified before the relevant House subcommittees and made my recommendations. (You can read my testimony here). Most of these are still relevant, I think. But for those not interested in reading through it, and so that I don’t have to revise anything out of date, let me boil it down to one basic recommendation:

STOP PLAYING GAMES

Really. Just fess up on whether the USG is going to cut the chord and let ICANN go its merry way, or not. If yes, set a time table and make it happen. Sure, there will be a lot of scurrying and efforts to slip all kinds of controls and commitments for this special interest group or that. But for Heaven’s sake, it’s been ten bloody years and an entire cottage industry has evolved around this stupid thing.

Or not. In which case, scrub the whole thing and start again. Having NTIA perform the tasks managed by ICANN directly, with all the procedural protections built around U.S. regulatory action, would be a step up from the current state of paralysis where nothing of real significance can ever get done because there are simply too many places for powerful interests to derail the process.

Let me be clear, I am not laying this at the feat of ICANN’s current management or staff or at the hands of any particular interest. Too damn many chances to have a rational structure have been squandered by people taking this stuff personally. What we have here is a problem of policy. As long as the ICANN-NTIA relationship remains in this ridiculous state where ICANN theoretically has authority to act but NTIA can override any ICANN decision, the whole process will continue to plod along in precisely the same way it plods along today. The problem lies not in the action of any individual or set of individuals, it lies in a process that is so ambiguous it cannot possibly produce consistent results.

Ten years ago, the USG took a risk on the “ICANN experiment.” Time to end the study. Either it is good enough to release on its own, or scrub the whole thing and start again. Unless, of course, we want to be having the same debate on what to do about ICANN for its 20th anniversary in 2016.

Stay tuned . . .