U.S. Congress

The U.S. Congress and ICANN

ICANN was created via actions by the U.S. Government in 1997; heretofore, the Internet was managed by the U.S. Department of Defense's Defense Advanced Research Projects Agency (DARPA), the National Science Foundation, and American universities and research institutions. On July 1st, 1997, President Bill Clinton directed the Secretary of Commerce to privatize the management of the DNS. The goal was to open the Internet to greater international participation, and to bolster it as a new medium of commercial competition and exchange.

On November 25th, 1998, after a process of seeking input from concerned and knowledgeable parties, The U.S. Department of Commerce and ICANN entered into a Memorandum of Understanding (MoU), which officially recognized ICANN as the entity that would manage the IANA contract. That contract is renewable, and thus, created an ongoing relationship between the U.S. Department of Commerce and consequently the U.S. Congress. Since the creation of ICANN, the U.S. Congress has had multiple interactions and hearings on the organization.

New gTLD Senate and House of Representatives Hearings

On December 8, 2011 the U.S. Senate Committee on Commerce, Science, and Transportation held a hearing, lobbied for by ANA, regarding to ICANN's New gTLD Program. Speakers included Senior Vice President of ICANN, Kurt Pritz; Fiona Alexander, Associate Administrator of the Office of International Affairs at NTIA; Dan Jaffe, Executive Vice President of Government Relations for ANA; Esther Dyson, who served as ICANN's Founding Chairman (1998-2000), speaking as an independent investor; and Senior Vice President and General Counsel of the YMCA Angela Williams, speaking on behalf of NPOC. Senate officials present included: Committee Chairman Jay Rockefeller (D-WV); Sen. Amy Klobuchar (D-Minn), Sen. Kelly Ayotte (R-N.H.), and Sen. Maria Cantwell (D-Wash).

Sen. Rockefeller stated his support of the new gTLD program, claiming that he believed it was pro-competition and pro-innovation, but that the roll-out should be slower and more cautious. He cited the potential for fraud, consumer confusion, and cybersquatting as massive, requiring a phased implementation.

One of biggest the concerns expressed was that companies, including not-for-profits, would have to spend a lot of money to prevent cybersquatting and typosquatting. Dyson argued that the new TLD program "create[s] opportunities for entrepreneurs but [doesn't] really create any value for the economy." Pritz explained that defensive registration will likely not be as necessary as companies believe, as many of the new TLDs will not be big or open enough for cybersquatters to take advantage. Additionally, several new trademark protections had been built into the expansion strategy, making the new TLDs better protected against cybersquatters than those currently available.

Sen. Ayotte expressed concerns that adding significantly more TLDs would create a challenge for law enforcement officials to police websites.

Another major concern, voiced by ANA, was that there was no consensus on the program, and that the date for the application period to open was arbitrary.

In a letter dated December 8th, the same day as the Senate hearing, twenty-eight domain name industry participants wrote to Sen. Jay Rockefeller and Sen. Kay Bailey Hutchison to support the new gTLD program. They supported ICANN's argument that the program would be innovative and economically beneficial, and that the program had taken lots of people a long time to develop, hence it had not been rushed.

On December 14, a second hearing was held, hosted by the House of Representatives Energy and Commerce Committee. Those speaking at this hearing were Fiona Alexander from NTIA, Dan Jaffe from ANA, Kurt Pritz from ICANN, Employ Media CEO Thomas Embrescia, and Joshua Bourne representing CADNA.

The result of the House hearing was the suggestion that the program be delayed until there is a consensus between all relevant stakeholders, made by Rep. Eshoo. Pritz and Alexander came to the defense of ICANN's Multistakeholder Model, arguing that the process had not been rushed. It had taken ICANN seven years to get to the point where all the issues had been discussed and no new issues were being raised, during which time they had consulted all the relevant stakeholders. Alexander made the point that "consensus" does not always mean "unanimity."

CADNA, a long-time opposer to ICANN and the new gTLD program, also came to the support of ICANN. CADNA's change of heart came about as their sister group, FairWinds Partners, decided to provide new gTLD consultancy services. Bourne praised .xxx's novel trademark protection mechanisms, saying they should be mandatory for all new gTLDs, and claimed that Congress could help in fighting cybersquatters by revising the old US Anticybersquatting Consumer Protection Act. He did, however, request that ICANN announce dates for subsequent application rounds, in order to relieve the "condition of scarcity" that this uncertainty created.

The following week, the US Congress sent a letter addressed to ICANN President and CEO Rod Beckstrom and Board Chairman Steve Crocker, asking ICANN to delay the new gTLD program. The letter was signed by seventeen Congressmen, lead by Rep. Fred Upton. The letter cited their concern about the significant uncertainty about the process for businesses, non-profit organizations, and consumers. The suggested delay would serve to allow time for these groups to have their concerns alleviated.

There was also a letter sent by two Congressman, Bob Goodlatte and Howard Berman, to the Department of Commerce, in which they asked for a delay to the new gTLD program, and asked a number of questions on the Department's own preparedness and handling of the affair. They ask if ICANN is actually following its Affirmation of Commitments with the Department, and what the Department is doing to ensure that ICANN is following these commitments and protecting American businesses.

Letters to ICANN

In August 2012, members of the U.S. Congress wrote to the heads of ICANN and members of the U.S. government, questioning ICANN about their efforts to publicize the comment and objection processes for the New gTLD Program, as well as the possibility of expanding the functionality of the proposed Trademark Clearinghouse. They asked,

• What steps has ICANN taken to inform members of the public outside the ICANN community about the New gTLD public comment process, and to ensure the public's maximum and meaningful consideration and participation?
• ICANN has appointed an Independent Objector to review gTLD applications, but ICANN's Guidebook states that he may only raise objections that have been previously voiced by the public. Given this restriction, what steps is the Independent Objector taking to encourage and maximize public input? What role will the Independent Objector play in articulating and representing public concerns about specific gTLD applications?
• Will ICANN confirm that it will keep open the New gTLD public comment forum so that the broader public can comment on applications, and the Independent Objector can receive their views? If not, then what is the justification for refusing to accept and consider such material comments from the public?
• Is there anything that prevents ICANN from requiring registries to make the Trademark Clearinghouse available as a permanent service, extending it beyond the first 60-day period? Have Clearinghouse operators analyzed the feasibility of providing more meaningful and comprehensive trademark notifications, instead of only providing notice

when users register identical terms?

• In the response to our December 2011letterl ICANN suggested that the Government Advisory Committee agreed to the current Clearinghouse policies based on ICANN's commitment to review those policies "post-launch." When does ICANN intend to conduct this review? Is IcANN committed to making changes in response to specific suggestions and comments received as part of the "post-launch" review? In what ways might ICANN enhance its Clearinghouse policies after the new gTLDs launch?
• A further rights protection mechanism ICANN highlights is the availability of a "sunrise period" when certain trademark holders may reserve names in a new gTLD before it opens. Some are concerned that registries may use strategic pricing to take advantage of businesses and individuals who feel compelled to defensively register their names. What policies, if any, does ICANN have in place to discourage this activity and allay these concerns?

The full letter can be read here.

Defense Advanced Research Projects Agency

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