Chapter 2: ICANN and the domain name system after the ‘Affirmation of Commitments’
On September 30, 2009, the United States Department of Commerce (DOC) and the Internet Corporation for Assigned Names and Numbers (ICANN) signed an “Affirmation of Commitments” (U.S. Department of Commerce and ICANN 2009) that purports to recast the public–private relationship at the heart of the management of the domain name system (“DNS”). ICANN trumpeted this document as a culmination of the move from public to private control of the DNS, one that ICANN said “completes a transition that started 11 years ago” and “places beyond doubt that the ICANN model is best equipped to coordinate” the DNS (ICANN 2009c). The DOC treated it as a major milestone (U.S. National Telecommunications and Information Administration 2009b). In fact, while the Affirmation is significant, its significance is more political than legal. As a legal matter, the DOC allowed one of its main agreements with ICANN to lapse, thus surrendering the most formal and visible legal control the DOC had over ICANN. In so doing, the DOC gave up its reversionary interests in contracts ICANN had with third parties—the DOC’s right to require ICANN to assign those contracts to someone else were the DOC ever to lose faith in ICANN.
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