If you are following the debates around the IANA stewardship transition and the US government’s plan to relinquish its role as a steward of the Domain Name System, make sure you do not miss an excellent overview of the process and the arguments around it, prepared by DiploFoundation’s Sorina Teleanu.
The IANA stewardship transition: what is happening?
The attention of the global Internet community is very much focused these days on the IANA stewardship transition process. The umbilical cord between the US government and ICANN is expected to be cut on 1 October; afterwards, ICANN is to function as an entity accountable to the global multistakeholder Internet community. With this date rapidly approaching, both the supporters and the opponents of the transition tend to become more and more vocal in arguing for their positions. This post looks at the current status of the transition process: this first part provides a brief overview of the overall process up to now; the second part presents some of the arguments brought in favour and against the transition.
Intent to transition the stewardship role
The Internet Corporation for Assigned Names and Numbers (ICANN) is a US-based not-for-profit corporation whose main role is to coordinate the global Internet’s systems of unique identifiers (mainly domain names, Internet protocol (IP) numbers, and IP parameters), and to define policies for how these identifiers should run. ICANN’s role in the coordination of Internet’s technical resources (also known as the ‘IANA functions’) is carried out on the basis of a contract with the US government (USG), which is set to expire on 30 September 2016.
In the framework of this contract, the USG has an overall stewardship role over the Domain Name System (DNS) (which translates domain names into IP addresses): any major change in the DNS root zone (e.g. the introduction of a new top level domain such as .bank), once decided by ICANN, is passed to the USG (namely, the National Telecommunication and Information Administration - NTIA) for validation, before being implemented. In practice, what NTIA does is to simply verify if ICANN’s decision was made in line with its policies, and to then transmit the change to Verisign (the maintainer of the root zone) for implementation. There is no record of cases when NTIA has not validated a decision made by ICANN with regard to root zone changes.
In March 2014, the USG announced its intention to transition its stewardship role over the DNS to the global multistakeholder community. ICANN was requested to launch a process for the development of a transition proposal, which must have broad community support and be in line with four key criteria: support and enhance the multistakeholder model; maintain the security, stability, and resiliency of the DNS; meet the needs and expectation of the global customers and partners of the IANA services; and maintain the openness of the Internet. At the same time, work began on the elaboration of a set of recommendations for enhancing ICANN’s accountability mechanisms. As a result of this work, a transition proposal and an accountability proposal have been elaborated by the community, approved by the ICANN Board, and submitted to NTIA, which concluded that they are in line the criteria previously set by the Administration. Read the complete developments on the GIP Digital Watch observatory’s dedicated page.
What would change on the basis of the transition and accountability proposals?
The transition proposal envisions the creation of a separate legal entity (‘Post Transition IANA’ - PTI), as a subsidiary of ICANN, which will become the IANA functions operator, on the basis of a contract with ICANN. Therefore, IANA functions will continue to be performed within the ICANN framework, but a more clear separation between the technical functions and the policy making functions of ICANN is to be established.
There are also provisions in the proposal underlining the conditions under which a review process could lead to a separation of the IANA functions operator from ICANN. Major changes in the DNS root zone, currently subject to the USG formal approval, will be authorised by the ICANN Board of Directors.
The accountability proposal outlines a series of mechanisms aimed to make ICANN more accountable to the global Internet community. These additional accountability measures are seen as a necessary counterpart of the transition, meant to ensure that, in the absence of the accountability backstop provided by NTIA’s stewardship role of the IANA functions, there will be strong check and balances in place preventing ICANN from departing from its mission.
The core of the new accountability model is the so-called ‘empowered community’, that will function as an unincorporated association and will be able to enforce a set of ‘community powers’, such as removing members of the ICANN Board, rejecting ICANN budgets, or rejecting changes to the ICANN bylaws. This entity will act as instructed by the ‘decisional participants’ - most of ICANN’s supporting organisations and advisory committees (bodies representing the interests of Internet users, the private sector, the technical community, and governments).
In order to ensure a more active and consistent engagement of the community in ICANN’s decision making processes, the Board is required to engage in an extensive engagement process with the community before making major decisions on issues such as strategic and operating plans, modifications to ICANN bylaws, or reviews of the IANA functions. If the community is not satisfied with the results of such processes, it can exercise one of its powers. As a last resort mechanism, if the community decides to remove Board members or recall the entire Board, but the Board refuses to comply with such a decision, a claim can be brought in a court that has jurisdiction to force compliance with the decision.
What is the current situation?
Over the past few months, several steps have been made towards the transition. The PTI legal entity has been legally incorporated, under the name Public Technical Identifiers, and is ready to start performing the IANA functions once the contract between ICANN and the USG expires.
A new set of ICANN bylaws has been adopted, to reflect the recommendations outlined in the accountability proposal; they will only become effective at the moment of the transition. ICANN has also conducted a technical test on how the root zone management system would function if the US government authorisation step is removed, and has found that the system would be error free.
As the date of the expiration of the USG-ICANN contract is fast approaching, the debate on whether the transition should or should not happen on 1 October seems to get more and more intense. On 8 September, the chairmen of the Commerce and Judiciary Committees in the US Senate and House of Representatives sent a letter to the US Attorney General and the Department of Commerce Secretary, asking them to reconsider the plans to transition the IANA functions on 1 October.
On 13 September, several technology companies and trade associations (including Google, Yahoo, Amazon, and Facebook, among others) wrote to to the US Congress to express their support for the transition, and to ask the Congress not to delay the transition date. On 14 September, a hearing was convened in the US Congress, at the initiative of Sen. Ted Cruz (a constant opposer of the transition), with the aim to investigate the possible dangers of the transition. There have been many other debates, letters, and editorials that have addressed the IANA stewardship transition issue over the past few weeks.
What are the main arguments related the transition?
Supporters and opposers of the transition use a wide range of arguments to advocate for their positions. Here are some of them.
- The transition as a tool to increase ‘the power of foreign governments’ within ICANN. During the US Congress hearing held earlier this week, it was argued that the transition would decrease the power of the USG within ICANN, and would increase the power of ‘foreign governments’. While NTIA admitted that, post transition, USG would be on an equal footing with other governments members of ICANN’s Governmental Advisory Committee (GAC), it also explained that any GAC advice to which the ICANN Board would be required to give special consideration has to be based on consensus. This means that there will be no such advice going out from the GAC that the USG does not agree with. With regard to an overall risk of governments capturing ICANN, it was further explained that, in the context of the new ICANN bylaws (to become effective once the transition takes place), there is no such possibility. Governments cannot sit on the ICANN Board of Directors, and, in the empowered community (explained in the previous post), their power is similar to that of other ICANN bodies.
- The transition as a risk to Internet freedom. One common argument against the transition is that, should the USG relinquish its stewardship role over the IANA functions, this would open the door for authoritarian governments (China, Russia, and Iran are most often mentioned) to expand their content control and censorship policies at a global level. Sen. Cruz argues, for example, that the USG-ICANN contract is a tool that the USG can use to ensure protection of freedom of speech on the Internet. Once this contract expires, the protection of the Internet freedom would be at risk, as ICANN could be captured by authoritarian governments who would then use the organisation as a mechanism to expand their policies. Critics of this view underline that the USG-ICANN contract is too limited in scope to be a tool for protecting Internet freedom. Freedom of expression is related to Internet content and second level domains. NTIA has no involvement whatsoever in such issues, and ICANN is not a regulator of content. Moreover, the contract simply empowers ICANN to perform the management of the key technical Internet resources, and the USG role is this process is simply a clerical one. From a technical point of view, the transition would only remove NTIA as an intermediary in the process of making chances to the DNS root zone, thus actually simplifying the process.
- Delaying or preventing the transition would send a wrong signal to the global community. Supporters of the transition emphasise the fact that the privatisation of the IANA functions is a process the USG committed to as early as 1997. The current transition proposal has been elaborated by the larger community, and it has a broad support. If the government now backs down on its commitment, it will lose credibility. In this context, the USG support for the multistakeholder model of Internet governance would be seriously questioned.
- Delaying or preventing the transition as a risk to the multistakeholder model of Internet governance. The current role of the USG as a steward of the IANA functions has been used as an argument by many governments to advocate for the Internet to be governed in an intergovernmental set-up (be it the United Nations, the International Telecommunication Union, or a new intergovernmental mechanism all together). If the USG does not allow the transition to happen, this would only give such governments even more arguments to push for an intergovernmental model of Internet governance. Moreover, governments that over the past few years have been convinced about the value of the multistakeholder model might reconsider their positions if they see the USG as not delivering on its commitments.
- Preventing the transition can lead to a fragmentation of the Internet. One interesting scenario brought forward by supporters of the transition says that, should the transition fail to happen, this might serve as an incentive for parts of the community to move towards a system that would compete with the current DNS managed by ICANN. Although alternative roots already exist, they are not so much used nowadays, but this might change if the community is not satisfied with how the current model works, especially if the transition fails to happen.
- The transition should happen gradually. There are also views according to which the transition should happen, but as part of a gradual process, which would allow the new model to be tested. In such a scenario, the clerical role of the USG in approving changes to the DNS root zone can be removed, but the government should retain its ability to take the IANA functions away from ICANN, should it turn out that the new ICANN accountability mechanisms do not work as planned. Supporters of this idea say that the accountability mechanisms incorporated in the new ICANN bylaws need to be tested in practice, and that a transitory period would bring no harm to the overall transition process. Opponents of this scenario argue, however, that the accountability mechanisms involve extraordinary powers entrusted to the community (such as the removal of the ICANN Board), and that it may take years until the circumstances happen that would require the exercise of such powers.
- ICANN’s jurisdiction and whether the organisation would be able, at a later stage, to move outside the US, despite current bylaw provisions, is another matter of concern. During the Congress hearing, ICANN explained that the entire organisation is constructed around California law, and changing this would be a very hard thing to do. It was even said that it might be easier to ‘start a new ICANN elsewhere’ than to move ICANN outside the US jurisdiction.
- USG property implications of the transition. In September 2015, members of the US Congress asked the US Government Accountability Office (GAO) to issue a legal opinion on whether the transition would result in the transfer of any kind of US government property without the legal authorisation by Congress, as required by the US Constitution. GAO issued its opinion earlier this month and concluded that ‘it is unlikely that either the domain name system or the authoritative root zone file […] is US government property’. It also found that ‘NTIA has the requisite authority to terminate the agreement [with ICANN], and, thus, to dispose of this Government property interest’. This opinion is seen by some as only adding another layer of uncertainty to the IANA transition process, and, as such, as another reason for the transition not to take place on 1 October.
NTIA’s possible infringement of legal provisions passed by the Congress. In 2015, the US Congress passed the Consolidated Appropriations Act for the 2016 fiscal year, which contains a provision prohibiting NTIA from using appropriated funds to relinquish its responsibilities regarding the IANA functions, until 30 September 2016. There are views that NTIA has infringed this provision through various activities performed in preparation of the transition (through, for example, use of funds and civil servants’ time to evaluate the transition proposal). NTIA, however, argues that this is an extensive interpretation of the legal provision; in its view, the Appropriations Act only prohibits the government from actually relinquishing its responsibilities, and it does not refer to the preparatory activities for the transition.