As reported in the April 2016 issue of Anchovy News, the Chinese Ministry of Industry and Information Technology (MIIT) released a draft of new rules concerning the regulation of the domain name system in China. The proposed new policy contained a provision under Article 37 that any domain name (regardless of what TLD it is registered under) whose website is hosted in China must be registered with a Chinese domain name registrar. Failure to meet this requirement could result in that website being blocked to Internet users based in China. The language of Article 37 raised such serious concerns that the US government has taken the unusual step of issuing a statement publicly criticising the Chinese governments proposed stance to Internet governance.The statement was released jointly by Ambassador Daniel A. Sepulveda, Deputy Assistant Secretary, Bureau of Economic and Business Affairs at the US Department of State and Lawrence E. Strickling, the Assistant Secretary of Commerce for Communications and Information and Administrator of the National Telecommunications and Information Administration.

In the joint statement, Sepulveda and Strickling claim that the proposed rule changes would “appear to create a barrier to access and force localization of data and domestic registration of domain names” and that this would have “potentially large and negative repercussions for everyone.”

As mentioned above, Article 37 came in for specific criticism as many initially interpreted its wording as a move by the Chinese government to prevent access to all websites hosted outside of China. This was seen as an expansion of the “Great Chinese Firewall”. A clarification was issued by the MIIT which stated that these rules are not intended to prevent foreign websites from resolving within China.

Regardless of this, the US government has raised its concern that even if Article 37 was not drafted in order to prevent access to all domain names registered with a registrar outside of China, the language of Article 37 is “vague and open to differing interpretations.” Indeed, the US government is worried that even in the narrowest interpretation of the language of Article 37, it could “contravene, undermine, and conflict with current policies for managing top level domains that emerge from the Internet Corporation for Assigned Names and Numbers (ICANN), which follows a multistakeholder model in its community-based and consensus-driven policymaking approach.”

The US government’s statement goes on to criticise the proposal that root server operators, domain name Registries and registrars must be legal entities established in China, and their servers and databases must be located in China. The US government views this as “forced localization” which would “potentially create new barriers to the free flow of information and commerce across borders and consequently infringe upon internationally recognized commitments on free expression and trade.”

In a strong worded conclusion, the US government stated that it “supports the open global Internet as a platform for free expression and economic and human development worldwide” but that what it could not accept “is the exercise of aggressive authority over people’s use of the Internet or the ability of a government to prevent the world from reaching its people.”

Whether or not the US government statement will have any impact on the Chinese government’s stance and the wording of its proposed rule changes remains to be seen. Internet governance is a politically sensitive topic at the moment with the transition of the Internet Assigned Numbers Authority (IANA) function away from the oversight of the US government to the global multistakeholder Internet community. There are fears that this will leave the Internet exposed to censorship and security risks. Indeed such concerns have been raised repeatedly during the current US presidential election campaign with China often being the focus of such concerns.

The controversy surrounding the proposed MIIT rule changes is likely to continue. It will be interesting to see if any other governments issue statements concerning the proposed changes to Chinese domain name regulation and what the final policy will be.

First published on Anchovy News: Anchovy® is our a comprehensive and centralised online brand protection service for global domain name strategy, including new gTLDs together with portfolio management and global enforcement using a unique and exclusive online platform developed in-house.