Revisting ICANN's role in domain name allocation

Long back we had written in detail over the hows and whys of cyber law, reflecting on the nuances and features of this branch of law. There we had noted, and again reiterate that any discussion on cyber law cannot be complete with a reference to the Internet Corporation for Assigned Names and Numbers or the popularly called ICANN. The role played by ICANN is not only pivotal for the world-wide-web (www) to even begin operations but the regulatory and governing functions of ICANN are also seminal in as far as cyber law is concerned. A recent award rendered by the International Centre for Dispute Resolution (or ICDR) sketches the role of ICANN in this regard in detail and that forms the thrust of this post. 

To begin with, and which is also the most important portion, let us note the historical genesis of the international body as noted in the very first paragraph of the award;

From its beginning in 1965, an exchange over a telephone line between a computer at the Massachusetts Institute of Technology and a computer in California, to the communications colossus that the Internet has become, the Internet has constituted a transformative technology. Its protocols and domain name system standards and software were invented, perfected, and for some 25 years before the formation of the Internet Corporation for Assigned Names and Numbers (ICANN), essentially overseen, by a small group of researchers working under contracts financed by agencies of the Government of the United States of America, most notably by the late Professor Jon Postel of the Information Sciences Institute of the University of Southern California and Dr. Vinton Cerf, founder of the Internet Society. Dr. Cerf, later the distinguished leader of ICANN, played a major role in the early development of the Internet and has continued to do so. European research centers also contributed. From the origin of the Internet domain name system in 1980 until the incorporation of ICANN in 1998, a small community of American computer scientists controlled the management of Internet identifiers. However the utility, reach, influence and exponential growth of the Internet quickly became quintessentially international. In 1998, in recognition of that fact, but at the same time determined to keep that management within the private sector rather than to subject it to the ponderous and politicized processes of international governmental control, the U.S. Department of Commerce, which then contracted on behalf of the U.S. Government with the managers of the Internet, transferred operational responsibility over the protocol and domain names system of the Internet to the newly formed Internet Corporation for Assigned Names and Numbers (“ICANN”).

Thereafter the process of allocation of domain names was described in the decision as thus;

10. The Domain Name System (“DNS”), a hierarchical name system, is at the heart of the Internet. At its summit is the so-called “root”, managed by ICANN, although the U.S. Department of Commerce retains the ultimate capacity of implementing decisions of ICANN to insert new top-level domains into the root. The “root zone file” is the list of top-level domains. Top-level domains (“TLDs”), are identified by readable, comprehensible, “user-friendly” addresses, such as “.com”, “.org”, and “.net”. There are “country-code TLDs” (ccTLDs), two letter codes that identify countries, such as .uk (United Kingdom), .jp (Japan), etc. There are generic TLDs (“gTLDs), which are subdivided into sponsored TLDs (“sTLDs”) and unsponsored TLDs (“gTLDs”). An unsponsored TLD operates under policies established by the global Internet community directly through ICANN, while a sponsored TLD is a specialized TLD that has a sponsor representing the narrower community that is most affected by the TLD. The sponsor is delegated, and carries out, policy-formulation responsibilities over matters concerning the TLD. Thus, under the root, top-level domains are divided into gTLDs such as .com, .net, and .info, and sTLDs such as .aero, .coop, and .museum. And there are ccTLDs, such as .fr (France). Second level domains, under the top-level domains, are legion; e.g., Microsoft.com, dassault.fr. While the global network of computers communicate with one another through a decentralized data routing mechanism, the Internet is centralized in its naming and numbering system. This system matches the unique Internet Protocol address of each computer in the world –- a string of numbers – with a recognizable domain name. Computers around the world can communicate with one another through the Internet because their Internet Protocol addresses uniquely and reliably correlate with domain names.

11. When ICANN was formed in 1998, there were three generic TLDs: .com, .org. and .net. They were complemented by a few limited-use TLDs, .edu, .gov, .mil, and .int. Since its formation, ICANN has endeavored to introduce new TLDs. In 2000, ICANN opened an application process for the introduction of new gTLDs. This initial round was a preliminary effort to test a “proof of concept” in respect of new gTLDs. ICANN received forty-seven applications for both sponsored and unsponsored TLDs.

The dispute related to the change in stand adopted by ICANN in regard to the allocation of a domain name with a suffix .xxx to the claimant ICM. The ICANN had initially held that the application of ICM in this regard met with the eligible criteria but later due to the change in the governmental stands of various countries, specially the United States, had changed its decision to grant the domain name to ICM. The validity of this denial was in challenge before ICDR. Holding in favour of ICM, the award concluded thus;

the provision of Article 4 of ICANN’s Articles of Incorporation prescribing that ICANN “shall operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law,” requires ICANN to operate in conformity with relevant general principles of law (such as good faith) as well as relevant principles of international law, applicable international conventions, and the law of the State of California.

(since) the Board of ICANN in adopting its resolutions of June 1, 2005, found that the application of ICM Registry for the .XXX sTLD met the required sponsorship criteria (,) the Board’s reconsideration of that finding was not consistent with the application of neutral, objective and fair documented policy. 

Have a look at the decision.