Why India must engage with ICANN

ARUN MOHAN SUKUMAR

ReutersTURNING POINT: “The governance architecture that emerges after September 2015 could erode or enrich the capacity of states to regulate the flow of information online and protect the rights and security of their citizens.”

India’s Internet diplomacy has found its voice late, leaving the government with little time to get its act together before the ICANN-U.S. contract expires in September next year

Late last month, the Prime Minister’s Office chaired a meeting of the three nodal ministries — the Ministry of External Affairs, the Department of Telecommunications and the Department of Electronics and Information Technology — responsible for charting India’s line on global Internet governance, capping a welcome effort to attend to this foreign policy concern at the highest level. The PMO’s intervention has come not a moment too soon: the contract between the United States government and the Internet Corporation for Assigned Names and Numbers (ICANN) — which manages the Domain Name System (DNS) under U.S. oversight — expires in less than a year, leaving cyberspace up for grabs. The governance architecture that emerges after September 2015 could erode or enrich the capacity of states to regulate the flow of information online, protect the rights and security of their citizens, and develop robust Internet economies.

India’s ability to negotiate this transition has been hindered by a lack of inter-ministerial consensus and a familiar reluctance to engage civil society. Unlike other state-driven deliberations, the rules of this game are different: the U.S. has refused to cede control of ICANN to an inter-governmental agency, insisting instead on a “multi-stakeholder” body to replace its oversight. This requirement has given multinational corporations the ability to punch above their weight in international negotiations.

Countering the challenge

The Indian government could counter this challenge by harmonising the concerns of domestic Internet users, businesses and security agencies under its umbrella. Instead, it has chosen to sidestep ICANN talks altogether. India’s current strategy — encouraging alternative Internet governance regimes under the UN umbrella — has received support, but it cannot substitute for serious engagement on ICANN-related issues. Failure to do so will leave India with a discomforting choice: it can either let the U.S. renew its contract with ICANN after September and let one country have a disproportionate say in commercial, technical and intellectual property policies concerning the Internet, or watch from the margins as a new “multi-stakeholder” entity takes over, forged on the same unaccountable relationship that the ICANN currently has with foreign governments.

“If India would like changes in Internet policy to be effected globally, there is no substitute for engagement with ICANN”

The Indian position should be animated by four major concerns: first and foremost, the proposed handing over of the Internet Assigned Numbers Authority (IANA) — the specific department of ICANN responsible for running the DNS – from U.S. hands to a genuine, global organisation; second, the role and continued relevance of ICANN’s Governmental Advisory Committee (GAC); third, the contractual relationship between ICANN and Verisign, Inc., a private Virginia-based company that operates as the Internet’s “registrar” in charge of the .com domain; and fourth, the security and resilience of India’s .in and .bharat domains, as well as equal representation for all country code top-level domain operators at the negotiating table.

The transition due in September 2015 is historic, but not unprecedented. In 1998, the U.S. government used its financial clout over the IANA to shepherd its existence as an independent body to a department within a private, not-for-profit corporation called ICANN. Currently, ICANN’s architecture renders it answerable only to U.S. law and courts. The four most powerful players of the Internet — telecom companies, Big Business, the U.S. government and ICANN itself — have benefited from the predictability this legal regime offers, for dispute resolution, intellectual property enforcement, strategic gain and self-perpetuation respectively. If New Delhi wants this regime to be replaced with a more equitable order, it can no longer afford to see the Internet as a technical concern. For instance, routing all online traffic meant for India through its borders, as India proposed at the International Telecommunications Union Plenipotentiary Conference last month, would neither make any difference to the great commercial value attached to domain names nor affect policies surrounding the allocation of IP addresses. It could even force an extra layer of technical and legal complications on how Indians interact with foreign companies.

The GAC at ICANN is currently the only platform where India and other governments can offer substantive policy input to the Corporation. However, not only do GAC “decisions” require consensus among member states, they are also not binding on ICANN. India may find common cause with other GAC members, especially developing countries, but it would take proactive diplomacy from New Delhi to facilitate government-led dialogue in a forum dominated by private interests.

Issues India must flag

Among the key issues India should flag at the GAC is ICANN’s relationship with its registry operators in charge of top-level domains (TLDs) (.com, .edu, .org etc). A serious charge made against ICANN is that its accreditation rules for registry operators are a relic of the late nineties, when trademark holders and business interests lobbied the World Intellectual Property Organization to help the Corporation formulate a strict IP enforcement policy for domain name registrations. This policy was instrumental in the latter cherry picking a set of registrars to manage TLDs.

Verisign Inc., a familiar name to Internet users, is the registrar of the .com domain. Less known is a company known as Afilias Limited. Afilias, among the original registrars favoured by ICANN, was also selected by the Indian government in 2004 to manage the .in domain. Then, the government suggested Afilias was selected “based on its superior technology, international domain expertise and a shared vision for the proliferation of the .IN domain.” Do these conditions still hold? What were the criteria used to hand over the management of .in — the backbone of India’s critical information infrastructure — to a Dublin-based company? ICANN’s accountability to governments is important, but it is equally true that the Indian government must be transparent in its implementation of civilian Internet policies.

With the September 2015 deadline approaching, New Delhi would do well to coordinate its strategies into one comprehensive technical, legal and diplomatic endgame. The Indian government has a trump card in this negotiation — it is democratically elected by constituents of the world’s most lucrative market for Internet companies. Its government and civil society speaking in the same voice would lend considerable heft to India’s interventions at ICANN and other venues. If its Internet diplomacy aims to represent and protect the best interests of Internet users, the government must not shy away from taking them into confidence.

(Arun Mohan Sukumar is senior fellow, Centre for Communication Governance, National Law University, Delhi.)