I Think ICANN: How Will Changes in Internet Governance Affect Online Gaming?

The Hidden Hand

The popular image of the Internet paints it as an essentially “free” zone. No one owns it, no one controls it. But that assumption, as George Gershwin once wrote, “ain't necessarily so.” Users of the Internet do have a great deal of liberty. But unconfined, do-anything freedom? No. With literally billions of messages constantly flying back and forth between millions of web pages and billions of users, some sort of structure, some sort of traffic control, is necessary to prevent a descent into unusable chaos. There has to be a de facto steward of the network. Up until this year, that steward was officially the U.S. government, acting through the Department of Commerce. Now, however, that state of affairs seems to be changing.

History and Development

The Internet itself was largely developed and launched by the U.S. federal government. The Department of Defense launched the ARPANET in 1972 to centralize and coordinate packet switching communications technology. Using Transmission Control Protocol/Internet Protocol (TCP/IP), it enabled the use of the network by a large number of users at once. Soon, universities and scientists established independent networks which included satellite links. The development of software that could store, perform, and display multiple complex calculations in real time led to a steadily increasing demand from government science and academia. ARPANET was folded into the National Science Foundation's National Solutions, Inc. (NSI) net in 1987. By 1995, even this was too small, and Internet traffic was handed over to commercial carriers. ³ But the U.S. Department of Commerce continued to oversee the function of the IANA through its NTIA. ⁴

Internet functioning is subdivided into domain names, number resources, and protocol assignments. For domain names, the primary function is supervision of the so-called DNS Root Zone, which allocates the top-level domain names (such as .com, or .net) and country level domains (such as .cz, .uk, and .nz). Also included are the creation of new top-level domains, such as .xxx. The numbers function centers around the allocation of specific IP addresses. Both regional and national registries have been established, and it is they who allocate IP addresses to the Internet service providers (ISPs). There are two basic formats for IP numbers. IP version 4 (IPv4), in use since 1983, is the most widely used and most familiar. This is a 32-bit registry number divided into a four-octet sequence (e.g., 192.0.2.53). There are about 4.3 billion discrete IPv4 addresses, but these have all been distributed and no more will be created. ⁵ Version 6 is 128 bit numbers expressed in hexadecimal strings (e.g., 2001:0db8:582:ae33::29). The number of Version 6 addresses is said to be “1 million billion times bigger,” thus supplying all the addresses conceivably needed in the future. ⁶ Protocols, finally, are the codes which enable the entire Internet system to communicate with itself. At the risk of some oversimplification, these basic functions are designed to ensure that every Internet user has an address and a clear path to get there.

Given that first, the U.S. government had already had so much to do with turning the Internet into a working reality; second, the United States had a long history of robust freedom of speech and expression, and third, U.S. policy toward the Internet was largely “hands off,” there was little objection at the beginning for the Department of Commerce to assume the role of trustee over the IANA functions.

The Setup

But this state of affairs could not last. The Internet, by its very nature, is global. And a globally focused governing body had already been brought into existence. In 1998, the NTIA issued a proposal known as the Green Paper, designed to privatize the management of the Internet, stressing maximum competition and global participation. This was the beginning of ICANN. ⁷

ICANN defines itself as a nonprofit public benefit corporation whose task is to keep the Internet secure, stable, and interoperable. It promotes competition and develops policy on the Internet's unique identifiers. Policymaking is accomplished through a multi-stakeholder model, whereby issues are addressed in a bottom-up consensus fashion, rather than top-down by decrees from the board of directors. As the organization's official statement says: “The idea is that Internet governance should mimic the structure of the Internet itself—borderless and open to all.” ⁸ But the question still remains: how does ICANN govern?

The answer is: mostly, it doesn't. There are very few of the traditional trappings and instruments of governance as it is normally understood. Here, things work by mutual agreement, and there is very little of the coercive power associated with most forms of organization. According to one analysis, “ICANN is not engaged in ‘internet governance’ (democratic or otherwise) but, rather, a form of substantive standard-setting on specific topics—based on a demonstration of widespread community support—as to which registries, registrars and registrants have contractually agreed to be bound.” ⁹ Rather, ICANN provides what has been described as “a stable process to address the narrow issues of management and administration of Internet names and numbers on an ongoing basis.” ¹⁰ Strictly speaking then, ICANN is more of a steering committee then a governing body.

Until 2006, much of ICANN's work centered around the introduction of new top-level domain names. In that year, the Department of Commerce signed a contract that gave ICANN more autonomy in its functions, and reduced the U.S. government's role to that of oversight. But the question still remains: how does ICANN carry out its governing function?

The actual organization of ICANN begins with the board of directors, which has the last word on implementing policy recommendations. The board has 16 voting members and five nonvoting liaisons. Policy recommendations come from three advisory bodies: the Address Supporting Organization (ASO), the Country Code Names Supporting Organization (ccNSO), and the Generic Names Supporting Organization (GNSO). Selection of the board members is parceled out among the advisory bodies. The board is further advised by four advisory committees: the At-Large Advisory Committee (“At-Large”), the DNS Root Server System Advisory Committee (RSSAC), the Governmental Advisory Committee (GAC), and the Security and Stability Advisory Committee (SSAC). ¹¹

Armed with all this advice and input, the board distributes available IP addresses to the five Regional Internet Registries (RIRs), who further distribute them to individual users and ISPs within their areas. The five RIRs are as follows: AFRINIC (established 2005, serving Africa and based in Mauritius); APNIC (established 1993, serving the Asia Pacific region and based in Australia); ARIN (established 1997, serving the United States, Canada, as well as many Caribbean and North Atlantic islands, and based in the United States); LACNIC (established 2002, serving Latin America and the Caribbean, and based in Uruguay); and the RIPE NCC (established 1992, serving Europe, Central Asia, and the Middle East, and based in The Netherlands). ¹²

And then there are the root servers, which actually operate the top-level domain names we mentioned before. There are thirteen of them, and the majority of these operators—VeriSign, University of Southern California, University of Maryland, National Aeronautics and Space Administration (NASA), Cogent Communications, Internet Systems Consortium, U.S. Department of Defense, the U.S. Army research lab, and ICANN itself—are located in the USA. All of them derive the right to operate from contracts with ICANN.

Changes in Governance?

One of the primary goals announced at the founding of ICANN is to prevent any government or group of governments from taking control of the Internet. Nevertheless, the United States has continued to maintain de facto preeminence in the operation and administration of the Internet. ICANN itself was and is headquartered in Los Angeles. And so long as Uncle Sam was viewed as an “honest broker,” letting things be seemed the path of least resistance.

But that all changed in 2013, with the Snowden affair. Edward Snowden, a former Central Intelligence Agency (CIA) contractor, sought refuge in Russia after leaking thousands of classified documents to Britain's Guardian newspaper and the Washington Post. The documents revealed a systematic program of mass unauthorized communications surveillance, on a global scale, by the U.S. National Security Agency (NSA) and Britain's equivalent, the GCHQ. ¹³

The Snowden leaks fanned latent resentments and misgivings about U.S. hegemony in cyberspace, resulting in the so-called “Montevideo Statement.” Signed by the heads of the RIRs and several of the advisory boards and root servers, it was a call for increased internationalization of ICANN's IANA functions through “global multistakeholder Internet cooperation,” avoiding the fragmentation of the Internet country-by-country. ¹⁴

However, any hope for rapid progress soon faded. The new global multi-stakeholder regime is not yet in sight. In fact, the official instrument of permanent transfer is, as of October 2016, more than a year overdue. Nor is there any sign that a new regime of Internet governance will quickly emerge. Power, influence, and decision making in ICANN are so widely distributed that arranging the cooperation of so many stakeholders is a slow business at best, to say nothing of hammering out a consensus.

Threat to the Internet?

Given the hyper-diffused power structure of ICANN, it is difficult to see a new threat to open communication and freedom of expression emerging anytime in the foreseeable future—or, indeed, emerging at all.

To be sure, individual nations can and do interfere with the Internet, but only within their own borders. The ISPs are in most cases located within the countries they serve, using the national communication infrastructure. They are therefore readily accessible and vulnerable to official interference. China alone employs more than two million cyber cops to keep the Internet use of its citizens under continual surveillance and analysis. Gambling, pornography, and illegal scams are targeted, but so are “Internet rumors”—that is, discussion or speculation on politically taboo topics, such as official corruption or popular discontent with government policy, particularly on social media. The system of state control, constant monitoring, and content discrimination has been referred to as the “Great Firewall of China.” ¹⁵ Russia's Vladimir Putin has gone even further, alleging that the Internet itself is an espionage front for the CIA, ¹⁶ and is reportedly working towards a nationally controlled substitute. ¹⁷

While there is little to be done about local policies that repress Internet expression, it is a far cry from there to seeing proposed reforms as a hostile takeover of the Internet by parties inimical to free expression in general and the United States in particular, as some American lawmakers have averred. ¹⁸ While the latest proposed reform does increase some aspects of government-based advice and influence, ¹⁹ the governmental sector in general remains one of many participants and stakeholders in a multilayered arrangement that has, with some justice, been called Byzantine. And it should be remembered that no one national government will have the power to bend the whole of ICANN to its will.

Effect on Gaming

There seems to be little chance of a sudden coup by authoritarian governments. While they can and do interfere with the Internet access that occurs in their own national telecommunications infrastructure, suppressing any part of the Internet outside their particular jurisdictions seems close to a practical impossibility. Authority and influence in ICANN are radically diffused, even to the selection of board members. Consultation and consensus, expressed in contract form, are what makes ICANN go round.

So where does this leave the online interactive gaming industry? The best that could happen would be another top-level domain for gambling. That, however, seems unlikely for the immediate future. Installation of new top-level domains is a prohibitively time-consuming and arcane process. The worst that could happen would be an attempt to take over and ban gambling sites altogether. This, however, seems equally unlikely—for every government that would seek to suppress gaming online, there is another national/state/province reaping revenue from its licensing. And they all have an equal say. There is no such thing as a chain of command here; indeed the whole thing was designed to be anti-hierarchical. And as a practical matter, most of the root servers—that is, the actual on/off switches—are located in the USA or countries friendly to it, sharing much the same respect for free expression.

We can conclude, then, that under the new governance arrangements for the Internet (which have yet to be formally approved, let alone executed) Internet gambling will neither be exterminated nor extolled. It is still a work in progress. And probably always will be.