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ICANN and the Data Quality Act: Part II

This is the second part of a multi-part series reported by ICANNfocus. This part discusses the congressional concerns regarding ICANN's governance of the Internet. To read Part I, click here.

Since 1999 Congress has repeatedly expressed serious concerns regarding ICANN's governance of the internet. Congress has substantial responsibility for overseeing the key aspects of internet governance. Among its specific responsibilities, Congress has the duty to oversee implementation of the Department of Commerce's Memorandum of Understanding (MOU) and contract with ICANN.

Congressional oversight has, at least initially, proven an effective mechanism for achieving increased ICANN transparency and other ICANN reforms. As the House Commerce Committee noted, "The new board also changed its policies to open its meetings to the public, another reform resulting from the Committee's oversight and criticism."

In 1999 the House Energy and Commerce Committee's Subcommittee on Oversight and Investigations held a hearing to determine if ICANN and the Department of Commerce "were creating the type of transparent, consensus-based, standards-setting organization contemplated in the Administration's privatization plan." In the same year, the Judiciary Committee held a hearing, in part, to make sure that ICANN was "aware of the Subcommittee's interest in maintaining an accessible, accurate Whois database in order to protect American intellectual property interests."

Congressional concern regarding ICANN's practices continued in 2000. Two members of Congress sent a letter to the Department of Commerce's National Telecommunications Administration (NTIA) noting the widespread concern in much of the internet community "about the lack of accountability and transparency in the ICANN process" with regard to the issuance of new Top Level Domains (TLDs).

Deep Congressional concern over ICANN's TLD selection process was highlighted by a 2001 hearing by the House Subcommittee on Telecommunications and the Internet, "Is ICANN's New Generation of Domain Name Selection Process Thwarting Competition" The key ICANN-related concerns discussed at the hearing included the need for:

1. Accountability and transparency;
2. A reliable and transparent system for redress of ICANN decisions;
3. A government role in internet governance to protect the public interest; and
4. Data Quality.

Congress followed up on its concerns about ICANN through a series of letter to the Secretary of Commerce regarding ICANN. The letter of August 6, 2001 encapsulated key Congressional concerns regarding ICANN as well as the need for continued oversight of the organization by both the Department of Commerce and Congress to ensure that it meets its responsibilities. "We believe that the [TLD selection] process should be based on established objective criteria and be carried out in a transparent process with clear accountability and processes for redress. ... We ask that the Department of Commerce continue to closely monitor this process. The Committee on Energy and Commerce, for its part, expects to hold more hearings throughout this Congress to monitor ICANN's progress."

Additional hearings concerning ICANN and its governance of the internet where held in 2001 by the House Judiciary Committee and the Senate Commerce, Science and Transportation Committee.

In June of 2002, Senator Wyden, Chairing the Senate Commerce, Science and Transportation Committee, explained the purpose of the hearing by noting that "there is widespread feeling that changes are needed [in ICANN]." The Senator went on to explain that ICANN "needs processes that are transparent and fair, to earn the trust and confidence of the broad Internet community."

There was additional correspondence from House and Energy and Commerce Committee to the Secretary of Commerce in 2002 expressing bipartisan concerns regarding ICANN's governance and recommending reforms. The first letter, signed by five members including the Chairman and Ranking member of the full Committee and the Chairman and Ranking member of the Subcommittee on Telecommunications and the Internet, expressed objections to "ICANN's lack of transparency, due process, and accountability." Specific reforms recommended included:

1. Need for Increased Accountability; and

2. Establishment of Due Process Protections. The letter explained that "[t]here should be clear, written procedures for approving new gTLDs, as well as any future technical issues, including an impartial appeals process for those who have process or substantive complaints."

ICANN needs to establish Administrative Procedure Act-type rules concluded the Energy and Commerce Committee in yet another letter to the Secretary of Commerce. The correspondence again stressed the need for ICANN reforms including those relating to ICANN's perceived lack of accountability and transparency. Specifically, the Members states that "ICANN's operating procedures must be transparent to any and all interested parties. ... ICANN must establish rules, not unlike those in the Administrative Procedures Act, that provide interested parties with predictability. ... Additionally,...there needs to be an independent review process that provides complaintants with a fair, speedy, and unbiased resolution."

Congressional concern regarding ICANN continued unabated in 2003. At a hearing of the Senate Commerce, Science and Transportation Committee's Communications Subcommittee, Chairman Burns explained his concerns regarding ICANN, by stating "I am particularly concerned that the lack of accountability for this quasi-governmental organization poses serious dangers for American national security." ... "I am considering offering legislation...to ensure that ICANN is indeed becoming more accountable and that it is acting within its original Memorandum of Understanding (MOU) with the Department of Commerce. I am convinced that the issue of the proper role of ICANN is one of the most critical issues before this Subcommittee."

In conclusion, the House and Senate have both demonstrated a keen and ongoing bipartisan concern regarding ICANN's governance of the internet. ICANN has yet to adequately address these concerns through meaningful reform.

The next article in this series will discuss how ICANN adherence to the Data Quality Act would effectively address Congressional concerns regarding ICANN's governance of the internet with respect to:

1. Transparency. Increasing the transparency, accountability and predictability of ICANN's decision-making processes;

2. Redress. Establishing a speedy and unbiased system for affected parties to seek and obtain redress of legitimate complaints regarding the process or substance of ICANN decisions.

3. Data Quality. Developing and implementing standards for enhancing the quality of information ICANN requires that registrars disseminate.

For more information, please visit ICANNfocus.org.

By Bruce Levinson, SVP, Regulatory Intervention - Center for Regulatory Effectiveness
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