ICANN Says Pushing DOJ on NSI Probe Was "Not Inappropriate"

Computergram International, August 5, 1999

Interim chairman Esther Dyson has defended the Internet Corporation for Assigned Names and Numbers (ICANN) from allegations that it improperly pressured the US Department of Justice to revive antitrust investigations into Networks Solutions Inc (NSI). Last week US Congressman Tom Bliley, who chairs the House Committee on Commerce Correspondence, wrote to Dyson saying that the Committee had discovered a March 31 1999 email written to her by ICANN's chief outside council, Joe Sims. In that mail, Sims described a conversation he had had with DOJ official Chris Kelly, senior counsel to Joel Klein, the assistant attorney general of the Antitrust Division of the DOJ.

Sims said Kelly had conceded that the existence of a cooperative agreement between NSI and the Department of Commerce (DOC) limited the available options in the DOJ's antitrust action against NSI. The two men apparently discussed the possibility that the DOJ would "increase the pressure on DOC by some form of formal communication or higher-level contact." They also discussed how nice it would be if control of the internet's root server could be wrested away from NSI. "I must say that these communications appear to be highly inappropriate," Bliley told Dyson. He asked her to list all communications between ICANN and the DOJ and to provide all records pertaining to each. He asked whether ICANN knew of this contact in advance and what action it intended to take to prevent inappropriate actions in the future.

Dyson replies that: "The right to petition government is constitutionally protected... 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 more competitive market." She firmly denies any wrongdoing on ICANN's part: "We do not believe that this exercise of constitutionally-protected right to petition government could even arguably be considered inappropriate." As for any action ICANN might take, Dyson said that such questions: "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."