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The success of the domain name system created two problems: who controls the domain name system and who has the right to a domain name. While trademark law attempts to answer in part who has the right to a domain name, the establishment of ICANN was US Government's attempt to answer in part who controls the DNS.
For a history of the domain name system and the formation of ICANN, see the History page.
The authority of ICANN is derived from its contract with the US Government and from the participation of the representative Internet stakeholders (ie., generally no one can force the Regional Internet Registries or the country code top level domain holders to work with ICANN except through mutual agreement).
Derived From: Lennard Kruger, Internet Domain Names: Background and Policy Issues, Congressional Research Service p 3 (Oct. 28, 2009)
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.
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 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 $60 million and a staff of 110 in 2009. 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.5 Registry operators are companies and organizations who 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).6 In 2009, ICANN is receiving 92% of its total revenues from registry and registrar fees (41% from registry fees, 51% from registrar fees).7
ICANN’s Relationship with the U.S. Government
The Department of Commerce (DOC) has no statutory authority over ICANN or the DNS. 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 such as the University of Southern California, SRI International, and Network Solutions Inc.) the key components of network architecture that enable the domain name system to function. The 1998 Memorandum of Understanding between ICANN and the Department of Commerce 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, retains a role with respect to the DNS via three separate contractual agreements. These are:
- the Affirmation of Commitments (AoC) between DOC and ICANN, which was signed on September 30, 2009;
- the contract between IANA/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
- the cooperative agreement between DOC and VeriSign to manage and maintain the official DNS root zone file.
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.8 The AoC succeeds the concluded Joint Project Agreement (which in turn succeeded the Memorandum of Understanding between DOC and ICANN). The AoC has no expiration date and would conclude only if one of the two parties decided to terminate the agreement.
Buildup to the AoC
Various Internet stakeholders disagreed as to whether DOC should maintain control over ICANN after the impending JPA expiration on September 30, 2009. Many U.S. industry and public interest groups argued that ICANN was not yet sufficiently transparent and accountable, that U.S. government oversight and authority (e.g., DOC acting as a "steward" or "backstop" to ICANN) was necessary to prevent undue control of the DNS by international or foreign governmental bodies, and that continued DOC oversight was needed until full privatization is warranted. On the other hand, many international entities and groups from countries outside the United States argued that ICANN had sufficiently met conditions for privatization, and that continued U.S. government control over an international organization was not appropriate. In the 110th Congress, Senator Snowe introduced S.Res. 564 which stated the sense of the Senate that although ICANN had made progress in achieving the goals of accountability and transparency as directed by the JPA, more progress was needed.
On April 24, 2009, NTIA issued a Notice of Inquiry (NOI) seeking public comment on the upcoming expiration of the JPA between DOC and ICANN.10 According to NTIA, a mid-term review showed that while some progress had been made, there remained key areas where further work was required to increase institutional confidence in ICANN. These areas included long-term stability, accountability, responsiveness, continued private-sector leadership, stakeholder participation, increased contract compliance, and enhanced competition. NTIA asked for public comments regarding the progress of transition of the technical coordination and management of the DNS to the private sector, as well as the model of private-sector leadership and bottom-up policy development which ICANN represents. Specifically, the NOI asked whether sufficient progress had been achieved for the transition to take place by September 30, 2009, and if not, what should be done.
On June 4, 2009, the House Committee on Energy and Commerce, Subcommittee on Communications, Technology, and the Internet, held a hearing examining the expiration of the JPA and other issues. Most Members of the Committee expressed the view that the JPA (or a similar agreement between DOC and ICANN) should be extended. Subsequently, on August 4, 2009, Majority Leadership and Majority Members of the House Committee on Energy and Commerce sent a letter to the Secretary of Commerce urging that rather than replacing the JPA with additional JPAs, the DOC and ICANN should agree on a "permanent instrument" to "ensure that ICANN remains perpetually accountable to the public and to all of its global stakeholders." According to the committee letter, the instrument should: ensure the permanent continuance of the present DOC-ICANN relationship; provide for periodic reviews of ICANN performance; outline steps ICANN will take to maintain and improve its accountability; create a mechanism for implementation of the addition of new gTLDs and internationalized domain names; ensure that ICANN will adopt measures to maintain timely and public access to accurate and complete WHOIS information; and include commitments that ICANN will remain a not-for-profit corporation headquartered in the United States.
Critical Elements of the AoC
Under the AoC, ICANN commits 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 calls 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-the panel will evaluate ICANN governance and assess transparency, accountability, and responsiveness with respect to the public and the global Internet community. The panel will be composed of the Chair of ICANN's Government Advisory Committee (GAC), the Chair of the Board of ICANN, the Assistant Secretary for Communications and Information of the Department of Commerce (i.e., the head of NTIA), representatives of the relevant ICANN Advisory Committees and Supporting Organizations, and independent experts. Composition of the panel will be agreed to jointly by the Chair of the GAC and the Chair of ICANN.
- Preserving security, stability, and resiliency-the panel will review ICANN's plan to enhance the operational stability, reliability, resiliency, security, and global interoperability of the DNS. The panel will be composed of the Chair of the GAC, the CEO of ICANN, representatives of the relevant Advisory Committees and Supporting Organizations, and independent experts. Composition of the panel will be agreed to jointly by the Chair of the GAC and the CEO of ICANN.
- Impact of new gTLDs-starting one year after the introduction of new gTLDs, the panel will periodically examine the extent to which the introduction or expansion of gTLDs promotes competition, consumer trust, and consumer choice. The panel will be composed of the Chair of the GAC, the CEO of ICANN, representatives of the relevant Advisory Committees and Supporting Organizations, and independent experts. Composition of the panel will be agreed to jointly by the Chair of the GAC and the CEO of ICANN.
- WHOIS policy-the panel will review existing WHOIS policy and assess the extent to which that policy is effective and its implementation meets the legitimate needs of law enforcement and promotes consumer trust. The panel will be composed of the Chair of the GAC, the CEO of ICANN, representatives of the relevant Advisory Committees and Supporting Organizations, independent experts, representatives of the global law enforcement community, and global privacy experts. Composition of the panel will be agreed to jointly by the Chair of the GAC and the CEO of ICANN.
DOC Agreements with IANA and VeriSign
A contract between DOC and ICANN, which currently extends through September 30, 2011, 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 DOCand VeriSign (operator of 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.11
By virtue of these legal agreements, the DOC has policy authority over the root zone file,12 meaning that the U.S. government can approve or deny any changes or modifications made to the root zone file (changes, for example, such as adding a new top level domain). The June 30, 2005, U.S. government principles on the Internet's domain name 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."13
The JPA is separate and distinct from the DOC legal agreements with ICANN and VeriSign. As such, the expiration of the JPA would not directly affect U.S. government authority over the DNS root zone file. Although ICANN has not advocated ending U.S. government authority over the root zone file, foreign governmental bodies have argued that it is inappropriate for the U.S. government to maintain exclusive authority over the DNS.
ICANN and the International Community
One of the outcomes of the DNS wars was the formation by ICANN of the Uniform Dispute Resolution Policy (UDRP). All registrants of domain names under the generic top level domains (ie., .com, .biz, .org) and under the .us top level domain must agree to this binding arbitration. This means that the trademark holder who is seeking to gain control of a domain name (but who may not have signed onto the UDRP if the trademark holder is not a domain name holder) may bring suit in a forum of choice with the arbitrators of choice. The domain name holder has signed the agreement and must submit to the jurisdiction of the arbitration if brought. A full discussion of the UDRP, which is neither federal law nor regulation, is outside of the scope of this project. More can be learned about the policy at <www.icann.org/udrp/udrp.htm>.
Note that the UDRP has undergone significant criticism. See ICANNWatch <www.icannwatch.org>; Milton Mueller, Rough Justice: A Statistical Assessment of ICANN's Uniform Dispute Resolution Policy, The Information Society (2001).
- FCC Fomento de Construcciones y Contratas, SA v. "FCC.COM", Case No. D2007-0770 (WIPO October 7, 2007), WIPO 10/18/2007
Federal courts are not bound by findings of the WIPO panel. See Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona, 330 F.3d 617, 624-26 (4th Cir.2003) (noting that a WIPO Panel decision regarding the Uniform Domain Name Dispute Resolution Policy ("UDRP") was not entitled to deference in a federal court proceeding; stating "[b]ecause the administrative process prescribed by the UDRP is `adjudication lite' as a result of its streamlined nature and its loose rules regarding applicable law, the UDRP itself contemplates judicial intervention, which can occur before, during, or after the UDRP's dispute resolution process is invoked.... Moreover, any decision made by a panel under the UDRP is no more than an agreed-upon administration that is not given any deference under the ACPA."); Eurotech, Inc. v. Cosmos European Travels Aktiengesellschaft, 213 F.Supp.2d 612, 617 n. 10 (E.D.Va.2002) (in considering motions for summary judgment, the court evaluated UDRP decision and findings but noted that the decision was not admissible on the merits of the liability issues). SUPER-KRETE INTERN., INC. v. SADLEIR, 712 F. Supp. 2d 1023 - Dist. Court, CD California 2010. Sullen (UDRP non binding); Parisi (court review is de novo).
See also ACPA :: Cybersquatters Personal Names .