ICANN's Game of Chicken with the USG & The Need for Adult (GAO) Supervision

ICANN recently proclaimed that the "Joint Project Agreement" (one of two contractual arrangements that ICANN has with the U.S. Department of Commerce (DoC) governing ICANN's operations) will come to an end in September 2009. ICANN's insistence on this point first became clear back in October 2008 at ICANN's Washington, D.C. public forum on Improving Institutional Confidence when Peter Dengate Thrush, Chair of ICANN's Board declared:

the Joint Project Agreement will conclude in September 2009. This is a legal fact, the date of expiry of the agreement. It's not that anyone's declared it or cancelled it; it was set up to expire in September 2009.

ICANN's recently published 2008 Annual Report stuck to this theme:

"As we approach the conclusion of the Joint Project Agreement between the United States Department of Commerce and ICANN in September 2009..." - His Excellency Dr. Tarek Kamel, Minister of Communications and Information Technology, Arab Republic of Egypt

"Concluding the JPA in September 2009 is the next logical step in transition of the DNS to private sector management." - ICANN Staff

"This consultation's aim was for the community to discuss possible changes to ICANN in the lead-up to the completion of the JPA in September 2009." - ICANN Staff

ICANN's effort to make the termination of the JPA seem inevitable is concerning on two fronts. First, ICANN fails to mention that the current JPA appears to be merely an extension/revision of the original 1998 Memorandum of Understand (MoU) with DoC, which was set to expire in September 2000. Thus, because the JPA does not appear to be a free-standing agreement, but merely a continuation of MOU-as Bret Fausset argues in his excellent analysis of the relationship between the MoU and the JPA (also discussed by Milton Mueller). Therefore, it would be more correct to talk about whether the "MoU/JPA"-meaning the entire agreement as modified by the most current JPA-will expire or be extended.

Although previous MoUs with the USG have been extended, ICANN seems to be playing a game of chicken with the USG-hinting that it will not extend the current MoU/JPA if ICANN believes that it has completed its mission. Since it seems possible that ICANN really might walk away from the MoU/JPA without global stakeholder consensus that it has fully completed its obligations under the MoU/JPA, it is critical that we think about the consequences of such a unilateral move by ICANN. ICANN would likely argue that the bilateral contracts it has in place with registry operators-from which ICANN has carefully removed most references to the USG in recent years-provide a sufficient legal basis for ICANN to continue its current operations without direct USG oversight.

Some stakeholders have expressed concern about the idea of ICANN not being directly held accountable to any government entity, but ICANN appears to have attempted to preemptively address this concern, when it acknowledged in its 2008 Annual report that "[t]he California attorney general is the legal overseer of California nonprofit public benefit corporations such as ICANN."

With the future stability and security of the Internet hanging in the balance, a neutral third party ought to analyze the current existing relationship between the USG and ICANN-before ICANN decides in September 2009 whether to renew the MoU/JPA or walk away. The General Accounting Office (GAO) is the ideal candidate for such a task, given its well-established reputation for independent analysis and prior experience studying these matters-especially its detailed 2000 analysis of the early stages of DoC's relationship with ICANN.

In conducting a new study, GAO ought to consider the following issues:

• Since the original 2000 GAO report on ICANN, ICANN's annual budget has skyrocketed to more than $60 million. That budget is set to grow significantly once ICANN begins accepting applications for new gTLDs on a large scale: Using ICANN's own projections of new gTLD applicants and the minimum fees that will be assessed suggests that ICANN's budget will soon exceed $100 million. As ICANN's budget grows, one must ask: Are these fees-paid by largely gTLD registrants, registrars, and registries-consistent with the GAO's conclusion in its 2000 report that ICANN is limited to recovering only actual costs (because "ICANN is a project partner with the Department under the memorandum of understanding, and it is the Department's policy to allow project partners to recover only actual project costs")?

• If ICANN walked away from the MoU/JPA without the USG formally acknowledging that ICANN had successful fulfilled its obligations under the agreement, would ICANN be able to rely upon its existing contracts with registry operators to continue collecting fees?

• In its 2000 report, the GAO asked whether the DoC "had the authority to transfer control of the authoritative root server to ICANN." The GAO did not definitively answer this question, but concluded that it was "uncertain whether transferring control would involve the transfer of government property to a private entity" thus giving rise to implications involving the Property Clause of the U.S. Constitution (Art. IV, § 3, cl. 2.), which requires statutory authority for the disposal of government property.

• GAO investigated, but did not resolve, whether or not an act of Congress would thus be required to transfer control of the root server to ICANN. But GAO did not undertake the same analysis as to whether the contractual rights associated with the top-level domains themselves constituted "government property" requiring Congressional action for any to transfer to ICANN. This may have been because U.S. courts had, at that time, held that domain names were not "property" in general, but simply a contractual right to a service provided by the registration authority. But this potentially changed with the Ninth Circuit's 2003 decision in Kremen v. Network Solutions concerning sex.com. Thus, if the GAO concludes that ICANN's gTLD contracts with registry operators involve property rights and that statutory authority would be required for the DoC to transfer these rights to ICANN, it is difficult to see how ICANN would be able to enforce these rights if ICANN ended its relationship with the USG as a project partner by walking away from the MoU/JPA-regardless of ICANN's success in removing references to the USG in these contracts.

These are just some of the initial questions the GAO needs to answer well before September 2009, independent of whether the USG and ICANN decide to extend the MoU/JPA. The stakes are just too high for these questions to remain unanswered.