August 4, 1999
The Honorable Thomas J. Bliley,
The House Committee on Commerce
2125 Rayburn House Office Building
Washington, D.C. 20515
Dear Chairman Bliley:
I am writing to answer your letter of July 28, 1999, asking for information about communications between ICANN and the Department of Justice. As several members noted during the recent hearing of your Committee at which I was privileged to testify, the creation and operation of ICANN is a complicated undertaking, and we appreciate any opportunity to better educate and inform the Congress and the public about what ICANN is doing and what we hope to achieve.
Your inquiry apparently was prompted by an e-mail message that was one of many provided to the Committee by ICANN in response to your earlier letter of June 22. Your statement that the conversation reported in this e-mail "appear[s] to be highly inappropriate" is puzzling, and appears to be based on a misunderstanding about the nature of the conversation described in this message. The right to petition government is constitutionally protected, and indeed is one of the freedoms that has distinguished the American form of government. Members of the Board, staff and counsel of ICANN have had a number of discussions with various members of the executive and legislative branches of government since ICANN's formation in late 1998. The common focus of those conversations has been ICANN's mission and objectives, and the obstacles that remain to accomplishing those objectives.
In this particular case, ICANN's counsel was urging the Department of Justice, which as part of its official mission is the principal advocate for competition within the Executive Branch, to urge the more rapid transition of domain name registration services from a single monopoly government contractor to a competitive market. The Department's representatives listened to this request, and agreed to consider it; that was the entire sum and substance of the conversation. We do not believe that this exercise of the constitutionally-protected right to petition government could even arguably be considered inappropriate. Indeed, I assume you and other members of this Committee receive regular requests to consider various actions, perhaps even related to this same subject.
As the e-mail in question indicates, this discussion did not involve the pending antitrust investigation of NSI, which had been ongoing for some time. But if it had, that would certainly also have been completely appropriate. ICANN is charged, both by its Memorandum of Understanding with the Department of Commerce and by a clear Internet community consensus, with replacing the current non-competitive domain name registration system with a competitive system, where price, quality of service and other important criteria relating to domain name registrations are determined by the marketplace, not by a monopoly provider. The Department of Justice is charged with enforcing the antitrust laws. One possible avenue from monopoly to competition in domain name registration services is through enforcement of the antitrust laws. Thus, it is appropriate for ICANN, through its counsel, to discuss with representatives of the Department of Justice ICANN's views of the antitrust enforcement issues associated with the current monopoly name registration situation, and for ICANN to advocate antitrust enforcement action if it believes such would be appropriate. ICANN is entitled to express its views on such subjects, just as any other person or entity may.
With this background, let me respond on behalf of the Initial Board of Directors of ICANN to your specific questions.
1. Provide a listing of all communications between the Department of Justice and ICANN.
We are unable to provide such a listing. We are not aware of any records of such communications other than the e-mail message previously provided. Nevertheless, we can state that there have been a number of discussions between counsel for ICANN and Department of Justice lawyers over the several months of ICANN's existence. Those conversations have generally concerned the antitrust and competitive policy issues relating to domain name registrations. We are aware of no other substantive conversations between a representative of ICANN and any official or employee of the Department of Justice.
2. Provide all records relating to such communications.
The Committee is already in possession of all such records.
3. Discuss the ICANN Board's knowledge of, or subsequent authorization of, the communication by counsel reflected in the e-mail message previously provided.
To the best of my knowledge, the ICANN Board was not aware of this particular communication prior to its occurrence. Such communications are part of the ordinary activities of ICANN's counsel and would not require nor normally generate prior notification or approval. Questions about the ICANN Board's reaction to the conversation after the fact appear to be based on the premise that this communication, or others like it, was somehow inappropriate; since we do not believe this is the case, we had no reason to instruct counsel to avoid such communications in the future. In fact, the Board expects its counsel, in the ordinary course of carrying out his responsibilities to ICANN and the ICANN Board, to continue to communicate with Executive Branch agencies, members of the Legislative Branch and their staffs, and any others with whom such communications are, in his judgment, useful to support the efforts of ICANN to carry out its responsibilities.
I hope this is responsive to your inquiry. On behalf of ICANN, let me reiterate that we are committed to carrying out our responsibilities with respect to the transition of the management of certain aspects of the Domain Name System from government control to the private sector through a process that is open and transparent. As a part of this, we are eager to work with this Committee and its staff to ensure that you have all the information required to fully understand how this transition is proceeding. As you know, we have offered to provide periodic briefings to Committee staff on a bipartisan basis, in the hope of avoiding misunderstandings such as the one that apparently prompted this particular inquiry. I look forward to working with the Committee and its staff to ensure that all Members of the Committee are fully informed about this difficult but important undertaking.
Please let me know if we can provide any further information.
cc: The Honorable John D. Dingell, Ranking Member