The National Telecommunications and Information Administration (NTIA), whose mission purpose describes it as “an agency in the U.S. Department of Commerce…principally responsible for advising the President on telecommunications and information policies” has recently published a Further Notice of Inquiry that includes a Draft Statement of Work intended to “detail the work requirements” for the functions of the Internet Assigned Numbers Authority (IANA), and, effectively, to form the basis for IANA’s future contract. IANA is the entity that oversees global IP address allocation, root zone management in the Domain Name System (DNS) and other related functions. IANA is currently operated by the Internet Corporation for Assigned Names and Numbers (ICANN), but was originally run by the Information Sciences Institute of the University of Southern California under a contract it had with the United States Department of Defense. As such it has always been under US control. IANA’s contract is next up for renewal on 30 September 2011. In a section entitled “Responsibility and Respect for Stakeholders”, the Draft Statement of Work stipulates that, in processing requests relating to new generic Top Level Domains (gTLDs), “the Contractor shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.” This has been interpreted by some as an attempt by the NTIA to establish veto powers for ICANN’s Government Advisory Committee (GAC), which is a policy advisory body composed of the representatives of various governments from around the world. ICANN’s Applicant Guidebook (AGB) is a document that sets out the rules and mechanisms for all aspects of the new gTLD application process. In its seventh iteration and still a work in progress in spite of the fact that the new gTLD programme was approved by the ICANN Board on 20 June 2011 (see the article Launch of New gTLDs: ICANN says Yes, We Can, above), it does not require “consensus support from relevant stakeholders” in order for a new TLD to be approved. It provides the GAC with various mechanisms to highlight problematic new gTLDs, such as the GAC Early Warning notice and the GAC Advice process, but the ICANN Board can simply choose to brush off the GAC’s concerns, as it did recently in relation to the approval of both .XXX and the new gTLD programme. In the run up to the approval of .XXX, US government reservations concerning the approval of this controversial TLD were expressed by the administrator of the NTIA, Laurence Strickling. However, these objections emphasised perceived risks to the stability of the Internet rather than on any moral objections to the TLD and they stopped short of any kind of strong-arm tactics that might invite the ire of those who would like to wrest control of Internet governance out of US hands and place it under the auspices of a UN controlled body. NTIA’s latest action would thus seem to be a cunning ploy to discretely re-empower the GAC and its constituents, including the US. The US found one of its most fervent allies in its resistance to both the new gTLD approval process and the approval of .XXX in European Commission Vice President and Digital Agenda Commissioner Neelie Kroes. Kroes and Strickling met on 12 May 2011 after Kroes had gone so far as to write to US Secretary of Commerce Gary Locke subsequent to approval of .XXX requesting that he block its addition to the DNS root in order to allow for more time for the concerns of the GAC and other parties to be heard. Strickling responded in a letter dated 20 April 2011 to Kroes stating that, while the Obama administration did not support ICANN’s decision on .XXX, he did “not think it is in the long-term best interest of the United States or the global Internet community for us unilaterally to reverse the decision.” In any event, all of this may be only a taster for the ructions to come when ICANN is faced with approving controversial new gTLDs, such as .gay and .porn. This article was written by David Taylor head of the Hogan Lovells domain name practice Anchovy. For more information on David Taylor, see www.hoganlovells.com/david-taylor or email him at drd@hoganlovells.com.
