By Nick Patience
Yesterday’s hearing into the methods and polices of the Internet Corporation for Assigned Names and Numbers (ICANN) was not quite the one-sided pro-ICANN festival some in the internet community had feared. The House Commerce Committee’s sub-committee on oversight and investigations spent just over three hours examining the current battles over the domain name system, which was not really that much time considering it heard from 13 witnesses. Question and answer sessions had to be cut short or cut out altogether towards the end of the hearing and many committee members said they would be submitting further questions in writing to the witnesses and expecting answers.
The title of the hearing, The Domain Name System Privatization: Is ICANN Out of Control? was expected to set the tone, and although Network Solutions Inc faced some very tough questions, so did the ICANN and Department of Commerce officials. It should be remembered that these hearings do not happen in a vacuum and the panelists are there for a reason; mostly because they, or their organization has lobbied hard for the right to have their say.
The irony is that it was largely NSI’s doing that the hearing came about because it persuaded conservative lobbying groups to push the Commerce Committee to get involved. But such was the strength of lobbying by ICANN’s supporters that they made up the majority of the panelists. NSI’s CEO Jim Rutt admitted later in the day that the company might have incurred a few public relations slip-ups during the hearing.
One of the key questions was asked by Diana DeGette, a Colorado Democrat, when she asked who owns the intellectually property of the database of domain registrants. The answers summed up the problem facing all those involved, or at least all those seeking an agreement.
Andrew Pincus, general counsel of Commerce’s National Telecommunications and Information Administration (NTIA), speaking on behalf of the associate administrator Becky Burr, said it was the government that owned the IP. NSI CEO Jim Rutt said it owned the intellectual property and ICANN interim chair Esther Dyson said she thought it was public property or at least it didn’t belong to any one company. NSI’s argument is that the IP gets transferred to it as part of its cooperative agreement with the DoC. DeGette, who is a lawyer, pushed Rutt for a legal justification of this claim, to which he replied that he’d have to get back to the sub-committee at a later date. It seems this subject could well end up in the courts, as the positions seem fairly intractable at the moment.
The question of the proposed – but now postponed – $1 per name annual fee was also addressed early on in the session, with Commerce Committee chair Tom Bliley asking Burr if the NTIA was aware of ICANN’s decision to demand such a fee. Burr said that Commerce had seen the proposed registrar accreditation agreement that included the fee and also noted that there were not many comments about it during ICANN’s comment period – apart from long and vociferous comments from NSI. Bliley had commented in his opening remarks about the $1 fee and the fact that up until now, ICANN has held its board meetings in private. He said the fee constituted an unauthorized tax on the America people and expressed satisfaction that ICANN appears to be backing down on both of these issues.
ICANN said it will hold its next meeting, in Santiago, Chile next month in public and will vote in November on whether to conduct the rest of them in that manner. Incidentally, ICANN president Mike Roberts was asked why Chile had been chosen – some in the community had suggested that it was because of the skiing opportunities. Roberts said the Latin American market is under- represented in the public debates on this issue and this is a way of raising awareness.
Bart Stupack, another Democrat, asked Rutt if NSI would sign a registrar accreditation agreement with ICANN, which it has so far resisted doing. Rutt would not say yes or no, and in a conference call with analysts later yesterday said on the subject: We cannot be dictated to here; any agreement has to be mutual. Pincus and Dyson both agreed that NSI should recognize ICANN immediately so the process can move forward. NSI is holding out because as a publicly-traded company it feels it is putting its core business into the hands of a group – ICANN – that is neither accountable or one that makes it decisions based on a consensus of opinion among the internet community. Rutt was asked later what be believed consensus was in this case, to which he replied, consensus is like pornography; you know it when you see it.
On the question of ICANN’s future funding, especially relevant now it has suspended the collection of this $1 fee, Dyson said that of the $800,000-worth of work done by ICANN counsel Joe Sims, who works for Jones, Day, Reavis & Pogue, about $500,000 of that has been done on credit. In addition she said that president Mike Roberts had not been paid for a few months – he’s on a contract from his family’s consulting firm at the rate of $18,000 per month. ICANN says it is running very short of funds right now and relies solely on donations.
On the later panels, which had less time than the main group, Mikki Barry of Domain Name Rights Coalition put the case for individuals to have representation within ICANN, which is not yet the case and surprisingly got some support for this position from Harris Miller, president of the Information Technology Association of America.
Jonathan Weinberg, professor of law at Wayne State University, Ann Arbor, Michigan, slightly paraphrasing Churchill and drawing an analogy with the current wranglings, said: Democracy is the worst form of government, apart from all the others, and pointed out that we should not be surprised that NSI and ICANN are at each other’s throats right now. He said if ICANN limited its scope to merely ensuring the stability of the structure of the domain name system then few would have any quarrels with it, but he also warned the sub-committee against intervening directly in the dispute, as one member suggested.
