Federal Internet Law & Policy
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The success of the domain name system created two problems: who controls the domain name system and who has the right to a domain name. While trademark law attempts to answer in part who has the right to a domain name, the establishment of ICANN was US Government's attempt to answer in part who controls the DNS.

For a history of the domain name system and the formation of ICANN, see the History page.

The authority of ICANN is derived from its contract with the US Government and from the participation of the representative Internet stakeholders (i.e.,, generally no one can force the Regional Internet Registries or the country code top level domain holders to work with ICANN except through mutual agreement).

Derived From: Lennard Kruger, Internet Domain Names: Background and Policy Issues, Congressional Research Service p 3 (Oct. 28, 2009)

ICANN is a not-for-profit public benefit corporation headquartered in Marina del Rey, CA, and incorporated under the laws of the state of California. ICANN is organized under the California Nonprofit Public Benefit Law for charitable and public purposes, and as such, is subject to legal oversight by the California attorney general. ICANN has been granted tax-exempt status by the federal government and the state of California.

ICANN's organizational structure consists of a Board of Directors (BOD) advised by a network of supporting organizations and advisory committees that represent various Internet constituencies and interests (see Figure 1). Policies are developed and issues are researched by these subgroups, who in turn advise the Board of Directors, which is responsible for making all final policy and operational decisions. The Board of Directors consists of 15 international and geographically diverse members, composed of one president, eight members selected by a Nominating Committee, two selected by the Generic Names Supporting Organization, two selected by the Address Supporting Organization, and two selected by the Country-Code Names Supporting Organization. Additionally, there are six non-voting liaisons representing other advisory committees.

The explosive growth of the Internet and domain name registration, along with increasing responsibilities in managing and operating the DNS, has led to marked growth of the ICANN budget, from revenues of about $6 million and a staff of 14 in 2000, to revenues of $60 million and a staff of 110 in 2009. ICANN is funded primarily through fees paid to ICANN by registrars and registry operators. Registrars are companies (e.g., GoDaddy, Google, Network Solutions) with which consumers register domain names.5 Registry operators are companies and organizations who operate and administer the master database of all domain names registered in each top level domain (for example VeriSign, Inc. operates .com and .net, Public Interest Registry operates .org, and Neustar, Inc. operates .biz).6 In 2009, ICANN is receiving 92% of its total revenues from registry and registrar fees (41% from registry fees, 51% from registrar fees).7

See also

  • ICANN’s Relationship with the U.S. Government
  • ICANN and the International Community
  • ACPA :: Cybersquatters Personal Names
  • Duties

    GAO 15-642, Internet Management, p. 8.

    Protocol Parameters: ICANN maintains a complete and public database of protocol parameters—the unique identifiers for commands or types of data used in established protocols.13 For example, while “GET” is a command in the HTTP protocol, as described in figure 1, “TEXT” indicates that the type of data being transmitted is text. ICANN maintains the database of protocol parameters under a separate memorandum of understanding between ICANN and the Internet Engineering Task Force (IETF).14 When a new protocol is established, such as a protocol for sending and receiving a new type of video file, ICANN adds the protocol parameters to the public database so that all software developers can easily access those parameters. According to this memorandum of understanding, ICANN’s technical functions staff will generally assign and register protocol parameters as directed by criteria and procedures specified in request-for-comments documentation.15 According to ICANN, its technical functions staff process more than 300 requests per month to add to or update the protocol parameter database.16

    Numbers (aka IANA Function): ICANN allocates large blocks of IP addresses and other numbers to the five regional Internet registries world-wide, according to globally developed policies.17 This responsibility is defined by ICANN’s contract with NTIA. (A separate memorandum of understanding between ICANN and the five regional Internet registries documents the global policy development process for the numbers community). Each regional Internet registry further allocates blocks of IP addresses in its particular region of the world. These IP addresses eventually reach Internet service providers and end users.

    Names: In concert with NTIA and a company called Verisign, with which NTIA has a separate cooperative agreement, ICANN processes changes to the top level of the domain name system (e.g., changes to the authoritative root zone file).19 ICANN receives these change requests, checks that appropriate technical and policy requirements were followed, and then sends the request in parallel to NTIA for verification and authorization and to Verisign for implementation. (Verisign will not implement the request until authorized by NTIA.) After Verisign implements the change, it distributes the updated authoritative root zone file to the 13 sets of root servers. ICANN also maintains the root zone database, which lists the operators of all the top-level domains and their contact information.20 Two examples of changes that ICANN processes as part of the names function include:

    gTLD Expansion

    Derived From: Lennard G. Krugarm, Internet Governance and the Domain Name System: Issues for Congress, Congressional Research Service May 23, 2014

    Top Level Domains (TLDs) are the suffixes that appear at the end of an address (after the “dot”). Prior to ICANN’s establishment in 1998, the Internet had eight generic top level domains (gTLDs), including .com, .org, .net, and .gov. In 2000 and 2004, ICANN held application rounds for a limited number of new gTLDs—currently there are 22. Some are reserved or restricted to particular types of organizations (e.g., .museum, .gov, .travel) and others are open for registration by anyone (.com, .org, .info). Applicants for new gTLDs are typically commercial entities and non-profit organizations who seek to become ICANN-recognized registries that will establish and operate name servers for their TLD registry, as well as implement a domain name registration process for that particular TLD.

    The growth of the Internet and the accompanying growth in demand for domain names have focused the debate on whether and how to further expand the number of gTLDs. Beginning in 2005, ICANN embarked on a long consultative process to develop rules and procedures for introducing and adopting an indefinite number of new gTLDs into the domain name system. A new gTLD can be any word or string of characters that is applied for and approved by ICANN. Between 2008 and 2011, ICANN released seven iterations of its gTLD Applicant Guidebook (essentially the rulebook for how the new gTLD program will be implemented). On June 20, 2011, the ICANN Board of Directors voted to approve the launch of the new gTLD program, under which potentially hundreds of new gTLDs could ultimately be approved by ICANN and introduced into the DNS. Applications for new gTLDs were to be accepted from January 12 through April 12, 2012.

    The rollout of new gTLDs was controversial. Advocates (including the domain name industry) argued that a gTLD expansion will provide opportunities for Internet innovation and competition. On the other hand, many trademark holders pointed to possible higher costs and greater difficulties in protecting their trademarks across hundreds of new gTLDs. Similarly, governments expressed concern over intellectual property protections, and along with law enforcement entities, also cited concerns over the added burden of combating various cybercrimes (such as phishing and identity theft) across hundreds of new gTLDs. Throughout ICANN’s policy development process, governments, through the Governmental Advisory Committee, advocated for additional intellectual property protections in the new gTLD process. The GAC also argued for more stringent rules that would allow for better law enforcement in the new domain space to better protect consumers. Although changes were made, strong opposition from many trademark holders32 led to opposition from some parts of the U.S. government towards the end of 2011. For example:

    • On December 8, 2011, the Senate Committee on Commerce, Science and Transportation held a hearing on the ICANN’s expansion of TLDs. Subsequently, on December 28, 2011, a letter from Senator John Rockefeller, chairman of the Senate Committee on Commerce, Science and Transportation, to the Secretary of Commerce and the Administrator of NTIA, stated his concern that “this expansion of gTLDs, if it proceeds as planned, will have adverse consequences for the millions of American consumers, companies, and non-profit organizations that use the Internet on a daily basis” and that at the hearing, “witnesses speaking on behalf of more than a hundred companies and non-profit organizations explained that ICANN’s current plan for gTLD expansion will likely cause millions of dollars in increased costs related to combating cybersquatting.” In the letter, Senator Rockefeller requested that NTIA “should consider asking ICANN to either delay the opening of the application period or to drastically limit the number of new gTLDs it approves next year.”33 A subsequent December 22, 2011, letter to ICANN from Senators Klobuchar and Ayotte also registered concern over the TLD expansion and asked ICANN to further address law enforcement, trademark, and consumer concerns before launching the program.34
    • On December 14, 2011, the House Committee on Energy and Commerce, Subcommittee on Communications and Technology, held a hearing on ICANN’s top level domain program. Subsequently on December 21, 2011, a bipartisan group of Committee Members sent a letter to ICANN requesting that the expansion of the gTLDs be delayed, noting that “many stakeholders are not convinced that ICANN’s process has resulted in an acceptable level of protection.”35 The Energy and Commerce Committee Members argued that “a short delay will allow interested parties to work with ICANN and offer changes to alleviate many of them, specifically concerns over law enforcement, cost and transparency that were discussed in recent Congressional hearings.”36
    • A December 16, 2011, letter to the Secretary of Commerce from Representative Bob Goodlatte, chairman of the House Subcommittee on Intellectual Property, Competition, and the Internet, and Representative Howard Berman, ranking Member of the House Committee on Foreign Affairs, urged DOC to take all steps necessary to encourage ICANN to undertake further evaluation and review before the gTLD expansion is permitted to occur. The letter asked DOC to determine whether the benefits of the expansion outweigh the costs and risks to consumers, businesses, and the Internet, and that if the program proceeds, that ICANN should initially limit the expansion to a small pilot project which can be evaluated.37 Previously, the Subcommittee on Intellectual Property, Competition, and the Internet had held a May 4, 2011, hearing on oversight of the gTLD program.
    • A December 16, 2011, letter from the Federal Trade Commission (FTC) to ICANN argued that a “rapid, exponential expansion of gTLDs has the potential to magnify both the abuse of the domain name system and the corresponding challenges we encounter in tracking down Internet fraudsters.” The FTC urged ICANN to implement the new gTLD program as a pilot program and substantially reduce the number of gTLDs that are introduced in the first application round, strengthen ICANN’s contractual compliance program, develop a new ongoing program to monitor consumer issues that arise during the first round of implementing the new gTLD program, conduct an assessment of each new proposed gTLD’s risk of consumer harm as part of the evaluation and approval process, and improve the accuracy of WHOIS data, including by imposing a registrant verification requirement. The FTC added that “ICANN should address these issues before it approves any new gTLD applications. If ICANN fails to address these issues responsibly, the introduction of new gTLDs could pose a significant threat to consumers and undermine consumer confidence in the Internet.”38
    • A December 27, 2011, letter to ICANN from the Senate and House Judiciary Committees expressed concerns over the new gTLD program and urged ICANN to “strengthen protections for consumers and trademark holders who risk being harmed by the proliferation of domain names on the web.” The letter also urged ICANN to work closely with the law enforcement community “to ensure that the program’s rollout does not adversely impact their efforts to fight fraud and abuse on the Internet.”

    At the December 2011 House and Senate hearings, ICANN stated its intention to proceed with the gTLD expansion as planned. ICANN defended its gTLD program, arguing that the new gTLDs will offer more protections for consumers and trademark holders than current gTLDs; that new gTLDs will provide needed competition, choice, and innovation to the domain name system; and that critics have already had ample opportunity to contribute input during a seven-year deliberative policy development process.40 Ultimately, ICANN did not delay the initiation of the new gTLD program, and the application window was opened on January 12, 2012, as planned.

    Much of the pressure on ICANN to delay the new gTLD program was directed at NTIA, given NTIA’s unique relationship with ICANN. At both the December 2011 Senate and House hearings, NTIA expressed support for ICANN’s planned rollout of the TLD expansion program, arguing that national governments have been able to address intellectual property, law enforcement, and consumer concerns through the Governmental Advisory Committee (GAC):

    NTIA believes that ICANN improved the new gTLD program by incorporating a significant number of proposals from the GAC. ICANN’s new gTLD program also now provides law enforcement and consumer protection authorities with significantly more tools than those available in existing gTLDs to address malicious conduct. The fact that not all of the GAC’s proposals were adopted as originally offered does not represent a failure of the process or a setback to governments; rather, it reflects the reality of a multi-stakeholder model.41

    While NTIA stated that it would continue to monitor progress and push for necessary changes to ICANN’s TLD expansion program, a key aspect of NTIA’s argument for supporting ICANN’s planned rollout was to preserve the integrity of the multistakeholder Internet governance process:

    NTIA is dedicated to maintaining an open, global Internet that remains a valuable tool for economic growth, innovation, and the free flow of information, goods, and services online. We believe the best way to achieve this goal is to continue to actively support and participate in multi-stakeholder Internet governance processes such as ICANN. This is in stark contrast to some countries that are actively seeking to move Internet policy to the United Nations. If we are to combat the proposals put forward by others, we need to ensure that our multi- stakeholder institutions have provided a meaningful role for governments as stakeholders. NTIA believes that the strength of the multi-stakeholder approach to Internet policy-making is that it allows for speed, flexibility, and decentralized problem-solving and stands in stark contrast to a more traditional, top-down regulatory model characterized by rigid processes, political capture by incumbents, and in so many cases, impasse or stalemate.42

    On January 3, 2012, NTIA sent ICANN a letter concerning implementation of the new gTLD program.43 While NTIA recognized that the program “is the product of a six-year international multistakeholder process” and that NTIA does “not seek to interfere with the decisions and compromises reached during that process,” NTIA urged ICANN to consider implementing measures to address many of the criticisms raised. Such measures would address concerns of trademark holders, law enforcement, and consumer protection. NTIA also asked ICANN to assess (after the initial application window closes and the list of prospective new gTLDs is known) whether there is a need to phase in the introduction of new gTLDs, and whether additional trademark protection measures need to be taken.

    NTIA concluded its letter as follows:

    How ICANN handles the new gTLD program will, for many, be a litmus test of the viability of this approach. For its part, NTIA is committed to continuing to be an active member of the GAC and working with stakeholders to mitigate any unintended consequences of the new gTLD program.44

    On June 13, 2012, ICANN announced it had received 1,930 applications for new gTLDs,45 and ICANN has now moved into the evaluation phase; ICANN will decide whether or not to accept each of the 1,930 new gTLD applications. With the first round application period concluded, there remain significant issues in play as the new gTLD program goes forward. First, ICANN has stated that a second and subsequent round will take place, and that changes to the application and evaluation process will be made such that a “systemized manner of applying for gTLDs be developed in the long term.”46 ICANN’s goal is to begin the second application round “within one year of the close of the application submission period for the initial round.”47 Thus, many observers are eager to see what changes may be made in the second round.

    Second, when the new gTLDs go “live,” many stakeholders are concerned that various forms of domain name abuse (e.g., trademark infringement, consumer fraud, malicious behavior, etc.) could manifest itself within the hundreds of new gTLD domain spaces. Thus, the effectiveness of ICANN’s approach to addressing such issues as intellectual property protection of second level domain names and mitigating unlawful behavior in the domain name space will be of interest as the new gTLD program goes forward.

    With respect to the new gTLD program, the GAC provides advice to the ICANN Board on any first round applications the GAC considers problematic. GAC advice can take three forms:

    I. The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for the ICANN Board that the application should not be approved.

    II. The GAC advises ICANN that there are concerns about a particular application “dot- example.” The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.

    III. The GAC advises ICANN that an application should not proceed unless remediated. This will raise a strong presumption for the Board that the application should not proceed unless there is a remediation method available in the Guidebook (such as securing the approval of one or more governments), that is implemented by the applicant.48

    The GAC also issues Early Warnings to the ICANN Board in the event that any GAC member finds an application problematic for any reason. An Early Warning is an indication that a formal GAC objection is possible (either through the GAC advice process or through the formal objection process). Applicants are notified of an Early Warning against their application and given the opportunity to address the concerns or to withdraw the application (thereby qualifying for a partial refund of the application fee).

    Uniform Dispute Resolution Policy 

    One of the outcomes of the DNS wars was the formation by ICANN of the Uniform Dispute Resolution Policy (UDRP). All registrants of domain names under the generic top level domains (i.e.,, .com, .biz, .org) and under the .us top level domain must agree to this binding arbitration. This means that the trademark holder who is seeking to gain control of a domain name (but who may not have signed onto the UDRP if the trademark holder is not a domain name holder) may bring suit in a forum of choice with the arbitrators of choice. The domain name holder has signed the agreement and must submit to the jurisdiction of the arbitration if brought. A full discussion of the UDRP, which is neither federal law nor regulation, is outside of the scope of this project. More can be learned about the policy at <>.

    Note that the UDRP has undergone significant criticism. See ICANNWatch <>; Milton Mueller, Rough Justice: A Statistical Assessment of ICANN's Uniform Dispute Resolution Policy, The Information Society (2001).

    Federal courts are not bound by findings of the WIPO panel. See, Inc. v. Excelentisimo Ayuntamiento de Barcelona, 330 F.3d 617, 624-26 (4th Cir.2003) (noting that a WIPO Panel decision regarding the Uniform Domain Name Dispute Resolution Policy ("UDRP") was not entitled to deference in a federal court proceeding; stating "[b]ecause the administrative process prescribed by the UDRP is `adjudication lite' as a result of its streamlined nature and its loose rules regarding applicable law, the UDRP itself contemplates judicial intervention, which can occur before, during, or after the UDRP's dispute resolution process is invoked.... Moreover, any decision made by a panel under the UDRP is no more than an agreed-upon administration that is not given any deference under the ACPA."); Eurotech, Inc. v. Cosmos European Travels Aktiengesellschaft, 213 F.Supp.2d 612, 617 n. 10 (E.D.Va.2002) (in considering motions for summary judgment, the court evaluated UDRP decision and findings but noted that the decision was not admissible on the merits of the liability issues). SUPER-KRETE INTERN., INC. v. SADLEIR, 712 F. Supp. 2d 1023 - Dist. Court, CD California 2010. Sullen (UDRP non binding); Parisi (court review is de novo).


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