ICANN ‘Stasis’ Only Viable Path, ABA Conference Told

ICANN “has been successful in what it set out to do,” said Jones Day lawyer Joe Sims, outside counsel for ICANN. He implicitly distinguished ICANN’s original technical role from its many policy activities over the years. The main goal was to “try to avoid screwing it up,” meaning to avoid excessive regulation of the Internet through a United Nations treaty organization, he said. The organization has only “stiffed” governments once, Sims said, noting that ICANN chose its U.S.-heavy original board over governments’ objections.

ICANN is finding it more difficult to avoid mission creep as its budget nearly doubles every year, Froomkin said: “Now that it has all this money and these people, they need something to do.” That activity leads advocates of greater intervention in ICANN to “dress up their claims in accountability,” he said. ICANN works well because its components are “distant members of the family,” said Stephen Ryan, counsel to the American Registry for Internet Numbers: “We only talk to ICANN when we need to.”

ARIN fears that its IPv4 address blocks could run out as early as next year, with interventionists exploiting the resulting scarcity, Ryan said. Unlike VeriSign and other registrars, ARIN gives address blocks to groups by need, not for profit, and there could be a “run on the bank for the last IPv4 blocks” as the IPv6 transition looms, he said. Hijacking of address blocks already occurs often enough that ARIN has informants in such criminal groups and a direct line to the FBI, Ryan said. He also goes to court “on occasion” to reclaim address blocks from recipients contemptuous of the “community” model, he said. Governments clamoring for more influence in ICANN will say “'You've managed this poorly, therefore governments should control the Internet,'” arguing for a one-government, one-vote system, he said. Much of the developing world could bypass IPv4 shortages by immediately adopting IPv6, Ryan said, but he worries numbers could be “politically allocated” in backroom deals between poorer countries and the West. Audience members cited lessons from 800 number and geospatial orbit allocations to guide ICANN’s numbering disputes.

Remaking ICANN as something like the Red Cross or International Olympic Committee would be a “terrible idea,” Froomkin said. With no checks and balances, ICANN could land in scandals the way those independent bodies have, he said, predicting abuse of the numbering system. Froomkin also noted a “logjam” in approval of new domain suffixes, blaming the technical community for not simulating how a regular stream of new domains would affect Internet security. Many technical experts believe a new domain can be added safely “every week or two,” he said.

Concerns about ICANN changing its model have persisted for 10 years without the parade of horribles predicted by critics, Sims said. New domains backed by powerful interests, such as .biz, have flopped for lack of demand, he said. The U.S. won’t “completely leave the field, ever,” Sims said, so the “current form of stasis is likely to continue for a very long time.” -- Greg Piper

ABA CyberLaw Notebook…

The Justice Department is charging harder at child porn, a newly-elevated official told the conference. The remarks seemed intended to blunt Hill complaints that the agency gives short shrift to child porn relative to white-collar crime (WID June 18 p3). “I know [child porn is] an area the attorney general cares about,” said Matt Friedrich, acting assistant attorney general for the criminal division, citing trips with Attorney General Michael Mukasey to discuss the issue with foreign counterparts. Friedrich, previously Mukasey’s deputy staff chief, replaced Alice Walker in late May. In a recent Florida case, DoJ “took it to the highest level,” pursuing operators of an international child porn ring that covered its tracks through encryption, Friedrich said. U.S., Canadian, German and U.K. authorities made arrests in what Friedrich called the largest “digital seizure” in FBI history. It was the first known use of the child exploitation “enterprise” statute in the Adam Walsh child-protection law, he said. “It’s the kind of case that doesn’t get made overnight and it doesn’t get made accidentally,” Friedrich said. Mukasey last month unveiled a strategy for targeting international crime syndicates using the Internet, Friedrich said. He cited other DoJ computer crime indictments, including one against an online pump-and-dump scheme operating from Thailand, a multinational hacker ring that breached credit card databases in New York, and “logic bomb” cyber attacks against pharmacy and military databases in New Jersey and Virginia. -- GP

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The merits of federal enforcement of child porn laws, and the need to federalize restrictions on simple “viewing” of child pornography, were the main points of contention at a panel about online sexual predators. Skeptical listeners invoked scenarios of minors sending lurid pictures of themselves to other minors, and ways in which well-intentioned laws could ruin innocent lives. Bonnie Greenberg, assistant U.S. attorney for the District of Maryland, repeatedly termed prosecutorial discretion an adequate shield against unintended consequences. Greenberg and Stephen Tidwell, executive assistant director of the FBI Criminal, Cyber, Response, and Services Branch, pushed for a “viewing statute” to eliminate a loophole. Greenberg noted an incident in which a man caught viewing child porn on a library computer could not be prosecuted due to mishandling of evidence, with the computer data lost except for a printout of the offending material, itself insufficient to prove the defendant legally possessed the image. Defense attorneys on hand argued that there is no way to disprove intent; Greenberg said the issue will resolve itself through the workings of the justice system: “It will write itself through case law.”