The Role of ICANN in Internet Governance - Essay Example

Internet Law and Governance: The Role of ICANN in Internet Governance Table of Contents Table of Contents Introduction 5 ICANNs Policy and Sanction 6 Public Policy Issues Related to Internet Governance 8 Domain Names and the Law in the UK 12 Challenges of Internet Governance 13 Conclusion 15 Works Cited 17 List of Abbreviations WGIG- Working Group on Internet Governance UN- United Nations ICANN- Internet Corporation for Assigned Names and Numbers IP- Internet Protocol system DNS- Domain Naming System NTIA- National Telecommunications and Information Administration GAO- Government Accountability Office WSIS- World Summit on the Information Society IGP- Internet Governance Project IPR- Intellectual Property Rights GTLDs- generic top-level domain names UDRP- Uniform Dispute Resolution policy Internet Law and Governance: The Role of ICANN in Internet Governance Abstract Internet law originated from research findings by WGIG, carried out under the leadership of the United Nations’ secretary-general (Drake 25). The secretary general of the UN received mandate to do so after an initial meeting held to discuss world information systems in 2003. WGIG had membership drawn from various sectors, which included the private sector, the government, as well as the Civil Society. During the summit, government heads emphasized the necessity to ensure proper use of the internet. Participants at the meeting resolved that the web is fundamental to enhance infrastructure of a developing information society. The meeting also generated an understanding of the suitability of units established to manage various activities by stakeholders involved the internet use. Stakeholders in the meeting, therefore, discussed that the UN Secretary General gain power to develop WGIG that would research on internet laws. Another outcome of the WGIG meeting was the formation of a private body, ICANN. The functions of ICANN were to manage and oversee significant technical issues and developments regarding internet communication. Among the issues of concern addressed by ICANN is the assignment of names and numbers using IP. Decisions, which ICANN usually makes, are a result of consultations with stakeholders in the sector. Such a statement means that policies and decisions formulated depended on agreements of concerned parties (Reed 56). Many governments, globally, have a realization of the effects of laws that ICANN formulates especially in cases where they fall in line with their national legislation. Among the sections of the laws, which may intersect with the national law are privacy, cyber security, intellectual property and enforcement of the law (Kohl 10). There are claims that some nations request and approve increased control of internet administration through collaborative means. Some nations have an idea that is administering laws would be simple if there are coordinated interstate efforts. Such a move informed the reason for the proposal to have an internet governance body at the UN head offices, Geneva (Drake 50). Proposals by member nations faced opposition from other stakeholders such as America that advocate the suitability of ICANN to ensure internet governance. Currently, America retains the mandate of controlling other speakers of ICANN (Cerf 113). Because of its fundamental contribution to internet governance, America now holds the leadership role of managing DNS because of contractual relationships with ICANN. America undertakes leadership of the system by use of bodies such as NTIA and Commerce Department. Decisions for the use NTIA in internet governance was unanimously resolved by the Senate. The contract expires on September 30, 2015. According to Drake (104), there are suggestions that the NTIA will not permit any government-controlled or intergovernmental body to take charge over its roles. The Congress passed the DOTCOM Act on May 8, 2014 to ensure NTIA remained firm in the control of internet administration system (Knake 12). The law suggests that if NTIA were to relinquish leadership to any other body, it would only happen after the submission of a report to the Congress from GAO. Introduction Internet governance does not have a standard definition worldwide but for the purpose of this work, there are two useful definitions. The proposal of definitions resulted from the meeting of WSIS of 2005. On a narrow scale, internet administration means the regulation of the technological underpinnings such as IP addressing systems and other technologies that make the Internet functional (Drake 34). Similarly, a comprehensive definition of the topic would mean a series of factors that relate to the policies of internet administration. Web management policy issues may include among other factors, freedom of the internet, privacy, e-commerce, cyber security property, and intellectual property. According to WSIS, a working definition of Internet administration is the creation and application of shared ideologies and procedures of decision-making to determine the development and usefulness of the internet. A second definition relates to IGP. Three essential aspects relate to internet governance according to IGP and may be the cause for Internet governance (Drake 59). First is technical standardization, which entails reaching and determining suitable levels for use. Second, there is allocation and assignment that involves an issuance of IP addresses and domain names. The last aspect of internet governance concerns how internet users should behave, and specifies the rules, regulations, and policies on issues such as trademark, cybercrime, spam, and copyright. Consequently, IGP gives the definition of Internet governance as a collective effort. Participants are owners, developers, users, and operators of the internet. Players in the sector make decisions for establishing rules, policies, and procedures for resolving disputes concerning technical matters and the mode of conduct of users. ICANN faces serious worldwide criticism for the larger involvement of America than the other nations, which caused some countries to demand a different method of administration. The internet has a naturally decentralized plan, which makes management by a single government difficult beyond its borders. It means that complications in internet governance result from a fact that the internet is multinational. Effectiveness of internet services depends on the willingness of chains of stakeholders, some who are the private sector and who do not feel comfortable under the control of the government. Decentralization of internet services presents serious challenges, over time. As both time and technology advance, it proves easy for individual internet users to use the internet illegally. Such actions relate to the fact that information communicated does not have centralized channels, but instead depends on different interconnected systems. If all information were to go through a single channel, there would arise a congestion that would render the Internet use defective. However, ICANN tries to administer Internet governance in ways that this work describes the given particular laws and regulations. The paper also explores challenges faced by ICANN in its duties against the achievements since its inception. Definitions given WSIS and IGP play a significant role in shaping the functioning of ICANN. ICANNs Policy and Sanction Originally, ICANN controlled users of the internet even while it lacked direct contact with them. There was as in place, a four-tiered unit where ICANN existed at the top while the internet users were at the bottom of the system. In the middle, there were registrars and registries that were organizations, which linked the two players. The function of ICANN at the top level was to make policies for the registries below it, who maintained files while running servers. Under the registries in the unit, there were the registrars with the function of retail interface to internet users. Their duties were customer-related service delivery in areas such as servicing and leasing of domain names for the users. Functions of the registrars also involved provision of internet services for the users. Lastly, the third players in the system were the internet users, whom ICANN served. ICANN applied a flow-down contractual format to manage the system. The contracts flowed down the chain to the registries, mostly entailing the regulation of the registries and the registrars. The registrars were to administer powers directly from ICANN through the system to users. In using this system of administration, the unit defined primary internet laws. For each stage of the communication process, ICANN cemented contracts with the threat of denying users their domain names in case of violation of terms. Threats in the system existed at all levels of administration. For instance, ICANN threatened the registries of the loss of their domains, registrars who violated contractual terms risked loss of their access to the logs, and the users could lose their namespace to some other users. The ICANN 1999a Registrar Accreditation Contract was a system invented for promulgation of laws. The law stipulates that all organizations that hoped to apply as registries comply with the terms of contract, which included an open end user agreement. ICANN 1999a explained the restrictions on the internet as well as ability to revoke assigned domain names. Using threats was a conventional method of administration and gave an insight into a development of web management system. In the search for proper Internet governance, there was a need that WGIG devote attention to identifying issues of public policy with potential relevance to internet governance. There was formulation of a broad method of approach that ensured there was no elimination of any potential relevant user issues. Questions developed out of planning culminated into four areas of concern. The first two concerns include infrastructural and managerial issues for Internet resources and use of the internet. The third and fourth concerns are matters that relate to use of the internet but with wider perspectives and issues of development of internet governance. Research findings by WGIG gave an insight to the manner in which ICANN would frame rules governing internet control. It gave the attention to what the laws needed to cover so that there was effective administration for the system. ICANN, upon its inception in 1988, replaced the administration of the internet with an organization from an individual. Before that time, Jon Postel had sole control over the root, which limited the use of internet services because of reduced efficiency. Public Policy Issues Related to Internet Governance An elaboration of issues outlined by WGIG indicate that managerial and infrastructural matters entail domain name administration as well as IP addresses, root server administration, standards of technology, interconnection and peering, infrastructure of telecommunications, incorporation of convergent and innovative technologies and multilingualization. Highlighted matters fall directly within Internet governance and have effects on organizations meant to address them. Questions of internet use include network security, spam, and cybercrime. As much as the factors affect internet governance directly, there are no definite systems of global cooperation to solve the problems (MacLean 100). Some other matters relate to the internet use yet they have wider impacts than the internet, which calls for organizational responsibilities. Among others, IPRs and international trade apply. The fourth factor is internet governance developmental aspects, which point to levels of capacity building by developing countries. Regarding the formulation of policies, WGIG matters strongly related to internet governance among them root zone files and their administration giving proposals for management by US government. Decisions for such an action resulted from historical references were only one national government could run the processes. There was also a challenge of lack of corporate relations with operators of root servers. Currently, root servers do not hold formal relationships connected to any authorities. Another matter proposed was interconnection costs that many termed as uneven because they required that developing nations pay fees in full because of lack of efficient mechanisms of internet governance. Other factors related to cybercrime, security, and internet stability in which recommendations implied that there were no defined methods of multinational cooperation on the subjects. A reason given for such a factor was inefficiency in the mechanisms as well as tools that states required to ensure protection of resources of the internet. Recommendations also included considerations to problems of spam where the task force seeking to establish internet governance noted lack of unified and global collaborations. As such, there is no universally recognized and commonly agreed definition of spam. At the time, there existed no specific legislative measures to define national laws against spam. This problem has since been dealt with because of the willingness of many nations to collaborate and give definitions and legislation against spam. WGIG had special considerations to development of a universal policy through fruitful participation. In its recommendation, WGIG noted that at that time, there existed multiple barriers to participation by multi-stakeholders. Many of these issues have relevance to lack of openness, transparency, and processes of participation. The group identified that some intergovernmental units had limited chances, which was expensive for many people to engage. Many of such organizations existed in developing countries. Contents of findings by some organizations only give advantage to members to use it, which gives a discriminatory approach for those who could not afford. Developing countries had limited chances for governments to participate in internet governance. Developing nations also had limited opportunities for capacity building, which necessarily meant their ability to use the internet, was not comparable to the developed countries. WGIG’s report also suggested that ICANN include in its laws, a clause that would manage issuance of domain names. It was particularly necessary for advancements in the policies and methods for GTLDs. As such, WGIG highlighted the requisition for further improvement of procedures for regulation and continued domain name improvements. Other areas of concern for domain names were equitability in terms of allocation of ownership rights. WGIG still required ICANN to address and find measures for assignment of IP addresses. There exists historical backing for imbalance in an IPv4 distribution presenting ICANN with a challenge of ensuring it deals with the parties. Concerns about Intellectual Property Rights especially in cyberspace is another matter proposed resolution to ICANN. As much as there are standard agreements for balance in terms of rights between users and holders, controversy looms concerning the most beneficial mode for all stakeholders. ICANN was established to ensure there was freedom of expression using measures that would ensure there was no cybercrime. To attain such levels of efficiency, ICANN was to incline its rules with The Universal Declaration on Human Rights (UDHR) and Declaration Principles of WSIS. There was also a need that ICANN develops a way of dealing with privacy and protection of rights of the internet users. During its launching, there were high numbers of reported the internet and cyber bullying and instances of loss of data. ICANN was to solve the issue of unprotected internet use by helping governments to enforce laws, which would later form a multinational law system. Consumers also required protection while using the internet. Up-to-date many people who buy goods online do not know their rights. The last area of concern for ICANN was availing multilingualism over online services. Such moves would make the internet a comfortable place for consumers because of the realization that the world has a diversity of spoken languages. Matters discussed in this section form the backbone of the role of ICANN in terms of internet governance. Many policies developed by the organization emanate from the need for multi-nationalism as it regards functionalities online. The role of ICANN is, therefore, purely administrative because its policies cover the most significant sections of online activities. Challenges that ICANN faces are a motivational factor for continued innovations into better policies to dictate internet governance. Global Public Policy There is no doubt as to whether ICANN has an ability to govern the internet because it has already done so through creation of a global public policy. This section of the work explains how ICANN achieved the process of formulating a worldwide public policy. As soon as ICANN became operational, it ascended its first law, UDRP with the aim of determining who has property rights as it concerns domain naming (ICANN, 1999b). UDRP outlines how ICANNs mechanisms of governance should work as well as ICANNs initial global public policy. The 1990s witnessed a rise the usefulness of domain names where names such as amazon.com and yahoo.com grew increasingly valuable for users. Popularity of domain names gave rise to conflicts governing naming processes for domain names. Among the disputes that arose when some people allegedly registered trademarks while expecting to sell them to others and when owners attempted to snatch desirable feature strings of others. At times, rights of ownership conflicted with those of fair use. A reason given for such actions was the inadequacy of the then existent Trademark law. At that time, the Trademark Law acted for national matters of the US, yet most conflicts were international. Legal measures for solving such problems proved too expensive and awkward for the concerned parties to engage. UDRP defined methods of disputes related to domain name disputes through establishment of legislative measures for property and ownership. There was establishes an alternative procedure for dispute resolution where certified personnel from the private sector would determine disputes under guidelines from ICANN. Dispute resolution would since then, involve a removal of disputed names or at times, transferring to other owners. Such decisions were open to judicial appealing, but the court system was expensive, which made decisions by UDRP almost binding. There is a general acceptance of the realization that through UDRP, ICANN used employed all its mechanisms of governance. The first mode was development of UDRP with membership drawn from various parties followed by ICANNs ultimate approval. The second mode was codification of the policy into a law, and the third move was involvement of sanctions. The final step was involvement of UDRP in governance of domain names. In nations where ICANN could not immediately implement the decisions to do so lay in the hands of administrators of country codes. In the establishment of UDRP, ICANN developed a public policy for governance of Internet-related issues. UDRP helped to establish rules governing domain names, privacy policy among others. Through the existence of worldwide systems, ICANN gained the control of internet governance. Further, it has continued to shape the system to make internet usage more secure. Governments traditionally make laws for governance of property. For instance, in USA, the Constitution gives specific rules for intellectual protection of property in patents. There are some countries with no recognized institutions for the formulation of property laws. Domain Names and the Law in the UK Trademarks have extensions by courts to address disputes over domain names (Luyt 12). Such provisions of by the courts are a framework for resolving private institutes under the guidance of ICANN. The UK’s Trade Marks Act of 1994 defines a trademark as any sign that may have a graphical representation capable of differentiating goods or services of one individual from another (1994 c. 26. 1). Particularly, a trademark may be use of words, letters, and shape of goods, their mode of packaging or design. It may also entail tastes, sounds and smells, which prove more troublesome to register than colors. According to the Trademarks Act of 1999, trademarks serve the purpose of granting ownership rights to goods and services and act as a means of helping consumers differentiate products in the market. Trademarks also indicate liability, adverts, quality, experience, and serve as means of edging out competition for markets. Challenges of Internet Governance ICANN faces a number of difficulties, which result from the growing popularity and simplicity of use in the modern information age. Consequently, there are always measures developed to counter the misgivings. The first challenge is internet pollution, defined as relevant addition of useless and destructive data on web pages. Conventionally, spam and viruses are the most common despite existence of other types of pollution such as spyware, phishing attacks, and pornography (Hundt 7). Internet pollution makes the internet users to find the web a hostile place because some pollutants are bases of internet security compromising strategies, which may lead to hacking. Pollution is a serious issue especially for government agents and organizations because it puts the institutions at a risk of losing sensitive information to wrong hands. ICANN has devised a solution to pollution, though not very efficient. There are junk mail filters that help to filter out spam messages especially for emails. Filtering is a technical approach supported by legal measures backed by legislative efforts. For instance, the UK has a declaration that spreading spyware is a violation of the law. There is an established act called Computer Misuse Act that became effective in 1994, which backed up the declaration. Other nations worldwide need to have their state laws, which have inclinations to provisions by ICANN. Another challenging factor is cybercrime. Although a different problem, cybercrime relates to internet pollution. It encompasses criminal activities such as web hacking, injection of worms, moles, viruses, and Trojan horses, financial fraud among others. Cybercrime proves difficult to tackle using legal measures because mostly, chances of finding evidence enough to prosecute victims fade with passing investigation time (Drissel 103). The problem of intellectual property rights poses one of the most challenging issues concerned with internet governance. The ease of sourcing information from the web gives people a chance to violate copyright terms for duplication of information. There are options that allow internet users to cut or copy and paste the information, which may include pictures and other media. Regulating such activities as intellectual rights’ ownership proves the most difficult for ICANN. The UK has legislative measures contained in the Forgery and Counterfeiting Act of 1981, which guards against intellectual rights ownership (1981 c.20. 1). The Forgery and counterfeiting Act has back up from The Basic framework in Copyright, Designs and Patents Act of 1988 (1988 c.48.1) and The Trademarks Act of 1994. Under these two provisions, it is unlawful to engage in violation of intellectual property rights. Other challenges include software and open licensing requirements and the already discussed assignment of domain names. The Trademarks Act identifies three types of issues related to IR as being cybersquatting; cyber warehousing and typosquatting. Each of the three types of IRs gives definite lines in relation to ICANN. For instance, if someone registers a domain name and purposes to sell it to its owner, then that is cybersquatting. Similarly, registering of misspelled TMs as domain names is typosquatting while registration of many domain names for sale is warehousing. In UK court scenarios, decisions on cases related to IRs involve interpretation of the articles of the laws of TMs under guidance of ICANN and Nominet. Nominet is a UK private organization concerned with coordination of court matters of IRs by providing guidance to the courts as it concerns provisions of UDRP and ICANN. Fresh challenges in internet governance put ICANN on toes to find solutions that will make the web safe and resourceful. Such moves are the reason for existence of plans for the institution. Future Policy Plans at ICANN Owing to the ever-growing nature of web usage, ICANN continually explores new methods of conflict resolution. Among the plans at ICANN is that on intellectual property rights, which has been a source of public concern for since the inception of ICANN. The Web gains prominence for its use in e-commerce, which makes users want to safeguard their property. ICANN faces this challenge by continuously planning to cater for technological advancements. There are plans to expand UDRP to can registering rights to celebrity name owners, a geographical name, and famous marks among others. Another plan is the promotion of social justice through control of the namespace and allows developing nations to pay less to use the web. ICANN also plans to use its powers to monitor sites that violate website content provisions and spread unneeded material. An example for such is the closure of voteauction.com, which facilitated vote buying and selling. The UK prohibits using illegal information on the web through the Computer Misuse Act (CMA) of 1990 (1990 c.18. 1) Conclusion Recognizing that ICANN involves internet governance is critical because of contradictory aspects resulting from founded beliefs on internet governance. Precisely, ICANN contracts the Benevolent Internet Anarchy. It proves that it is possible to attain internet governance, which ICANN attains by use of Domain naming system. The DNS gives possibilities for a top-down regulatory mechanism, which ICANN takes advantage of to formulate a policy of administration. Through the existence and functionality of ICANN, there emerges a point of how technology and the society relate. The first conclusion is technological aspects alter regulatory and administrative units. Notably, important policy matters arise from the distribution of technical features found in distributed database. Requisition for one namespace having an extraordinary root gave resulted in central source points. Similarly, as a need for peculiar identifiers developed, there led to a problem of monopoly and control. The existence of only one .com zone, which registered only one brand name created registries monopoly and helped to solve trademark name wars. Attempts targeting an alteration of the status of ICANN in terms of internet governance need to restructure the already developed design because of the efforts so far realized. Another avenue, through which technology restructures the society, is engineers’ influence on making of policies at ICANN. Choosing country codes for the formation of domain names gave critical consequences in terms of policy formulation. Such a decision came too early for other participants apart from engineers to participate. Engineers concluded that the associating internet domains with geopolitical names. To sum up the points of this work, the role of ICANN is managing internet governance. Works Cited Benedek, Wolfgang. Internet Governance and the Information Society: Global Perspectives and European Dimensions. Utrecht: Eleven, 2008. Print. Cerf, Vinton G. "The Internet Governance Ecosystem." Communications of the ACM 57.4 (2014): 7. Drake, William J. Reforming Internet Governance: Perspectives from the Working Group on Internet Governance (WGIG). New York: United Nations Information and Communication Technologies Task Force, 2005. Print. Drissel, David. "Internet Governance in a Multipolar World: Challenging American Hegemony." Cambridge Review of International Affairs 19.1 (2006): 105-120. Glen, Carol M. "Internet Governance: Territorializing Cyberspace?." Politics & Policy 42.5 (2014): 635-657. Hundt, Reed, et al. "Saving Privacy." Boston Review 39.3 (2014): 14-31. Knake, Robert K. Internet Governance in an Age of Cyber Insecurity. New York, NY: Council on Foreign Relations, 2010. 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