Phil Lodico ⬥ 6 May
I recently had the opportunity to read A. Michael Froomkin’s research paper, “Almost Free: An Analysis of ICANN’s ‘Affirmation of Commitments’” (AOC), which examines both the legal and political effects of the AOC. In my opinion, Froomkin’s research is thorough and enlightening, explaining how and why the AOC came into being; what it changes and what it does not change; and what kind of impact it will have.
Froomkin begins by looking at what the AOC would actually change in light of ICANN’s pre-existing relationship with the Department of Commerce (DOC). His analysis reveals that the AOC contains no binding promises. None of the promises ICANN enumerates is new, and none provides the U.S. Government with any way to enforce them. For ICANN, the AOC is an outline of what sort of organization it would like to be. The very process that produced the AOC is evidence of ICANN’s continuing failure to commit to any sort of genuine transparency and accountability.
Although Froomkin’s overall conclusion is that the AOC has been greatly over-hyped, he concedes that the agreement is a significant milestone in terms of the evolution of the management of the domain name system (DNS), but more so for its political rather than its legal impact. As a legal document, he opines that the AOC is a “paper tiger”; it seems threatening but it is actually quite harmless. As a political document, it is much more significant. By signing the AOC, the DOC seems to be acquiescing to pressure from the international community to make control over the governance of the DNS more global. However, the AOC most directly benefits ICANN itself; with the AOC, ICANN manages to loosen ties with the U.S. government, but also from other governments, whose only channel of influence is the Governmental Advisory Committee (GAC).
The paper also revisits two underlying issues that the AOC certainly glosses over: what, if any, standby or fail-safe control the U.S. retains over the DNS, and to what extent that even matters. This is particularly important considering that the DOC will have to make a decision about the fate of the Internet Assigned Numbers Authority (IANA) contract in September. Froomkin notes that there is a possibility that the U.S. will realize that the DNS’s centrality and importance are diminishing and be willing to let it go. For now, though, domain names are still highly valued for the market power they give over DNS service providers, the economic power they give over registrants and third parties and the political power they give over freedom of speech and geo-strategic power. Regardless, ICANN will remain an important figure in all of this; even if control of the DNS lacks political relevance, it still has a substantial economic impact.
Froomkin’s analysis is useful as we face the possibility that ICANN’s proposed introduction of new gTLDs could become a reality. The NTIA, the agency within the DOC charged with interacting with ICANN, created the U.S. government’s first public dispute with ICANN via a letter from Assistant Secretary of Commerce Larry Strickling. The letter includes specific complaints about the new gTLD program, and also notably points out ICANN’s failure to meet any of the obligations identified in the AOC with regard to its decision making processes – transparency, accountability and fact-based policy development. Froomkin’s research provides more than just insight into the AOC. It provides insight into ICANN’s relationships with the U.S. and international governments and organizations, as well as its motives and decisions concerning DNS, the IANA contract, and new gTLDs.
Tags: A. Michael Froomkin, Affirmation of Commitments [AOC], Department of Commerce, domain name system [DNS], GAC, gTLDs, IANA, ICANN, Larry Strickling, NTIA, U.S. government