Aspirational Paper Tiger

'Almost Free: An Analysis of ICANN's 'Affirmation of Commitments'' [PDF] by Michael Froomkin in 9(1) Journal on Telecommunications & High Technology Law (2011) 188-233 comments that -

As a legal document, the Affirmation itself is a paper tiger. It may not be a contract; even if it is a contract, there is no practicable way for either of the parties to enforce it (and almost no promises by the U.S. Government). Although both parties have a right to cancel the Affirmation upon notice, it is difficult to imagine circumstances in which either party would have anything to gain by such an act—and is also not that easy to imagine circumstances in which the cancellation would actually make a legal difference to either party. Indeed, the most important legal aspect of the Affirmation is that it is not the JPA which it replaced, for the JPA had some teeth.

In contrast, the Affirmation likely will be much more meaningful as a political document. By announcing in the Affirmation that it would allow the JPA to lapse, the U.S. signaled that it was giving up the most visible of its claims to direct control of ICANN. In so doing, it gave up powers that it could reasonably have calculated it would be unlikely to use: there must be some non-zero risk that ICANN could be captured by an ideological faction but, unlike the risk of economic capture, ideological capture does not seem a major worry at present. By further enhancing the power of the GAC, the U.S. DOC sought, with it appears some success, to meet the most vociferous critics of the unique U.S. role in the governance of the DNS (or, if you prefer, background supervision of the governor of the DNS) more than half way, yet without completely giving up its fail-safe powers, those deriving from the IANA contract and from ICANN’s domicile in California.

If the U.S. won some breathing room from its critics, and the international community achieved a large step towards its agenda of internationalizing the control of the governance of the DNS, the biggest winner from the Affirmation undoubtedly remains ICANN itself. ICANN is now free of U.S. Government control (except perhaps at the extreme margin) and yet still substantially free of real control by other governments. World governments must channel their influence via the GAC. The GAC has real influence over ICANN, but it does not have control. This fact, and the fact that the residual U.S. influence is not totally eradicated, has caused some non-U.S. leaders to call for yet more divestment by the U.S., but so far these calls have been rare.

Newly unchained, or at least on a very long leash, ICANN enjoys unprecedented freedom to shape its own fate and to decide what sort of body it wants to be. In losing the specter of undue U.S. influence, ICANN has also lost its major excuse for failing to live up to its professed ideals of transparency and accountability to the wider Internet community. What will happen next depends in large part on the extent to which ICANN’s struggle for autonomy has shaped its DNA, and to what extent ICANN is ready to transcend its past. Developments to watch include the unfolding of the ICANN–GAC relationship, whether ICANN’s budget continues its rapid growth or stabilizes, and whether ICANN’s new freedom allows it to move forward on new gTLDs.

The DOC’s next big decision will come no later than September 30, 2011, when the DOC must decide the fate of the IANA contract.150 Until then at least, ICANN is unlikely to make any new moves to leverage its power over the legacy root in order to control the behavior, much less the speech, of end-users in any realm other than the trademark arena already occupied by the UDRP. The fear that it might attempt to expand its reach, either on its own or if captured by some outside group, remains the major argument for the U.S. to retain its hold on the IANA function. On the other hand, if the U.S. accepts that, as argued above, the DNS lacks geo-strategic value, the U.S. may be more willing to let go.

In time, geo-strategy may not be the only arena in which the DNS’s centrality diminishes. If it is true that “[e]ighty percent of all online sessions begin with search,” then the DNS’s importance to the World Wide Web is well into its decline. Of course, the Web is not the Internet; many other services from e-mail to video transport rely on the DNS also. But the example of search, combined with the growth of “walled garden” discursive communities such as MySpace and Facebook, plus virtual worlds such as Second Life and World of Warcraft, all suggest that the long-predicted moment when the human-readable names for Internet addresses that the DNS enables begins to lose its importance really is just around the corner.

Meanwhile, however, until something contactless like phone-to-phone Bluetooth takes off, we will still need a human-friendly address to give to new potential correspondents in one-to-one relationships. Internet broadcasters, or their fine-tuned heavily personalized successors, will need some way to advertise their presence and make it easy for users to find them. At present, a nice memorable Web address works well on a business card, the side of a bus, or in a short radio or TV commercial. Thus, ICANN remains important because even if control of the DNS has limited political relevance, that control still has substantial economic importance—so long as the DNS’s hegemony of convenience continues.