On 21 December, the U.S. Congress passed a bill providing a $900 billion stimulus package for COVID-19 relief and to fund government operations (the Consolidated Appropriations Act of 2021). In an accompanying set of instructions, Congress directs the National Telecommunications and Information Administration (NTIA) to work with ICANN to expedite access to domain name registration information for those who need it, and to consider requiring U.S.-based registries and registrars to publish that information. At the time of this blog’s publication, it is not clear if President Donald Trump will sign the bill. We think it’s worth discussing the language on domain name registration data since it appears in text widely supported by Congress.
The Consolidated Appropriations Act of 2021 includes funding for the Department of Commerce and its agencies, including the NTIA. NTIA represents the U.S. Government at ICANN’s Governmental Advisory Committee (GAC). Prior to the Internet Assigned Numbers Authority (IANA) Stewardship Transition in 2016, NTIA also oversaw ICANN’s performance of the IANA functions. Accompanying the spending bill are joint explanatory statements (JES) in which Congress indicates its expectations for how the departments and agencies should use their funding. For NTIA, the relevant joint explanatory statement states:
“Domain Name Registration. - NTIA is directed, through its position within the Governmental Advisory Committee, to work with ICANN to expedite the establishment of a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information for legitimate purposes. NTIA is encouraged, as appropriate, to require registrars and registries based in the United States to collect and make public accurate domain name registration information.” (from Division B, Commerce, Justice, Science, and Related Agencies Appropriations Act, 2021, Title I, Department of Commerce, National Telecommunications and Information Administration, page 12.)
While this language appears in the JES, it does not appear in the legislative text. If the JES directs an action to be taken, the agency is expected to carry it out even if there is no legislative text directing the action. If an agency does not perform as it is directed, it may be penalized in future appropriations. Actions that are encouraged carry less weight and a penalty is less likely for a failure to take an encouraged action.
The JES text has two parts. In the first part, NTIA is directed to work with ICANN to expedite the establishment of a global access model. NTIA has received this direction from Congress in the past in the form of letters from Committee chairs, and NTIA has demonstrated in Hill testimony, blogs, and speeches that it is in fact seeking the requested access model. In other words, the direction is for NTIA to continue its efforts and perhaps push the ICANN community to more quickly develop an access model that works for law enforcement, intellectual property owners, and others with legitimate interests. A positive aspect of the language is that it shows continued Congressional support for ICANN’s multistakeholder model. It directs NTIA to push for an access model in its capacity as a member of the GAC and not by taking or supporting unilateral action.
The second part of the instruction is not as consistent with the multistakeholder model, although it is not worded as strongly as the first part. In this part, NTIA is encouraged to require U.S.-based registrars and registries to collect and make public accurate domain name registration information. As noted above, encouragement is aspirational; it is not a mandate.
What does this mean? First of all, it is significant that this issue was included in a U.S. Government spending measure. Congress has shown again that it wants a model that offers efficient access to domain name registration data, and that it will continue to press NTIA on its efforts to bring about such a model. The potential impact of the second half of the JES text is less clear. It appears to hint that if NTIA and the ICANN community can’t develop a robust access model, Congress could entertain more forceful measures that would impose requirements on U.S.-based registries and registrars to collect and publish domain name registration information.
In the meantime, the ICANN organization (org) will continue to work with the multistakeholder community to develop an access model that can be implemented across the globe. As part of this effort, we continue to seek greater legal clarity from the European Commission (EC) and the European Data Protection Board (EDPB), following the implementation of the General Data Protection Regulation (GDPR). ICANN org believes that if we receive this advice, the ICANN community would be able to develop and implement an access model that is global and diminishes the need for local or regional solutions that may create conflicting obligations.