This article examines the legal and political effects of the
Affirmation. It begins by asking what the Affirmation actually changes
in light of the pre-existing ICANN-DOC relationship. It then asks what
these changes tell us about ICANN's current legal status and about its
future. It concludes that even though the Affirmation has been
overhyped, the agreement is nonetheless a significant milestone in the
evolution of the management of the DNS -- but more for its political
than its legal import. As a legal matter, the DOC allowed one of its
main agreements with ICANN to lapse, thus surrendering the most formal
and visible legal control the DOC had over ICANN. In so doing, the DOC
gave up its reversionary interests in contracts ICANN had with third
parties -- the DOC's right to require ICANN to assign those contracts to
someone else were the DOC ever to lose faith in ICANN. 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 ("GAC"), a committee of government
representatives open to every nation, which has a direct channel to the
ICANN Board as well some agenda-setting powers.
If these changes are less legally earthshaking than the parties might
have sought to make them seem, their political import is nonetheless
real. By allowing its most visible agreement with ICANN to expire, the
DOC made a tangible -- if still incomplete -- response to growing
international pressure for the U.S. to abandon the control over ICANN
that other nations feared gave the U.S. a dominant role over the DNS.
ICANN enjoys significantly more independence after the Affirmation than
it had before. And the GAC, the only direct means by which non-U.S.
governments can influence ICANN, emerges from the Affirmation stronger
as well.
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. Here the picture is less clear, but some of the answers are
surprising: 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.
Readers are assumed to understand the technical basis of the DNS.
This research paper in full, along with the sourced of this
introduction, can be downloaded from the University of Colorado at
Boulder's Journal on Telecommunications and High Technology Law at:
www.jthtl.org/content/articles/V9I1/JTHTLv9i1_Froomkin.PDF
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