Abstract: This article examines the legal and political effects of the “Affirmation of Commitments” between the United States Department of Commerce and ICANN. The agreement purports to recast the public-private relationship at the heart of the management of the DNS.
The DOC surrendered its most formal and visible legal control over ICANN – but kept some less visible powers. In exchange, ICANN promised to remain located in the U.S., thus remaining subject to U.S. jurisdiction. ICANN also committed itself to a lengthy round of accountability exercises, although whether these will amount to anything substantive is not obvious. Furthermore, ICANN again expanded the role of its Government Advisory Committee, a committee of government representatives open to every nation, which has a direct channel to the ICANN Board as well some agenda-setting powers. The Article suggests that the total legal significance of these changes is much less than their substantial political importance.
The article then revisits two underlying issues that the Affirmation papers over: what standby or fail-safe control the United States retains over the DNS, and to what extent that (or any) control over the DNS matters. It concludes that the U.S. retains a lessened, but still real, degree of control over the DNS – but it may not matter as much as many of us think. The possible risks of having a body – be it public or private – in charge of the DNS can be grouped into four categories: (1) primarily economic issues involving market power over DNS service providers (registrars and registries), (2) economic power exercised over registrants and other third parties, (3) more general political power over speech or other uses of the Internet, and (4) geo-strategic. Some of these, notably the economic risks, the article argues, are much more real dangers than others. In particular, the article asserts, the geo-strategic risk has been greatly exaggerated.
An earlier version of this article was presented at the 2009 Silicon Flatirons Conference at the University of Colorado.
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