On August 31st the Department of Justice (DOJ) sent a response to the August 12th letter from Senator Ted Cruz and some Congressional colleagues to the head of the Antitrust Division. In that letter Cruz et al asserted that if the pending extension of the .Com registry Agreement (RA) was granted in combination with the consummation of the IANA transition, that DOJ could be prevented from having “meaningful input into the prices that Verisign charges for registering a domain name within the .com domain for an extended period”. Based on that assertion, Cruz and his colleagues requested DOJ “to conduct a thorough competition review of the agreement before any oversight transition is undertaken and any agreement extension is approved”.
DOJ’s response makes clear that it will retain meaningful input into .Com pricing after the occurrence of either the .Com RA extension, IANA transition, or both; and that the National Telecommunications and Information Administration (NTIA), in consultation with DOJ, can extend the .Com wholesale price freeze through 2024 if it chooses to do so.
The operative part of the letter states:
As you may know, Verisign may not extend the .com Registry Agreement without obtaining NTIA’s prior written approval. Amendment 30 of the Cooperative Agreement requires such prior approval and provides the standard for NTIA’s review. In pertinent part, Amendment 30 provides: “[t]he Department [of Commerce] shall provide such written approval if it concludes that approval will serve the public interest in (a) the continued security and stability of the Internet domain name system and the operation of the .com registry … , and (b) the provision of Registry Services … offered at reasonable prices, terms, and conditions.” We note that the current extension proposal contemplated by ICANN and Verisign does not change the price cap contained in the 2012 .com Registry Agreement, which will remain in effect through November 30, 2018. Nor does the current extension proposal alter the price cap in Amendment 32 of the Cooperative Agreement. Moreover, if NTIA were to approve an extension of the .com Registry Agreement, it would have the right in its sole discretion to extend the term of the Cooperative Agreement with the current price cap in place until 2024 at any time prior to November 30, 2018, the date on which the Cooperative Agreement is currently scheduled to expire. If this occurs, the $7.85 fee cap would be extended another six years to 2024. (Emphasis added)
The DOJ response does not commit it and NTIA to take any particular action on .Com pricing prior to the current November 2018 termination of the Cooperative Agreement (CA), but it does make clear that NTIA has the discretionary power to extend the CA and the price freeze that it contains. NTIA could undertake such an extension if the Boards of both ICANN and Verisign approve the RA extension, as the letter makes clear that the extension requires NTIA review and approval before it can take effect. However, NTIA may well decide to leave the decision on whether to extend the CA and retain or adjust the price freeze to the next Administration, and that decision will likely be based upon a full review by the Antitrust Division.
In a related development on the antitrust front, ICANN General Counsel John Jeffrey has just sent a letter to the Wall Street Journal stating:
The Internet Corporation for Assigned Names and Numbers (ICANN) does not enjoy an “antitrust exemption.” ICANN is not, and never has been exempted from antitrust laws… ICANN has not been granted an antitrust exemption by any of its contracts with NTIA. No ruling in ICANN’s favor has ever cited an antitrust exemption as the rationale.(Emphasis added)
That belts-and-suspender concession comports with the views of most antitrust experts that ICANN’s claim to an antitrust exemption was tenuous at best even when the U.S. government exercised direct oversight of the organization, was substantially diluted when the relationship loosened under the current Affirmation of Commitments, and would conclusively disappear entirely upon consummation of the IANA transition. However, that position is at complete odds with the one that ICANN took as recently as 2012, in a lawsuit brought by YouPorn owner Manwin Licensing in regard to the then-controversial .XXX gTLD, when it asserted (and when Mr. Jeffrey was likewise General Counsel):
ICANN cannot, as a matter of law, be liable under the antitrust laws with respect to the conduct alleged in the Complaint because ICANN does not engage in “trade or commerce.”…[ICANN] does not sell Internet domain names, it does not register Internet domain names, and it certainly is not an Internet pornographer. ICANN does not make or sell anything, it does not participate in any market, and its Bylaws expressly forbid it from participating in any of the markets referenced in the Complaint.(Emphasis added)
That antitrust immunity was rejected a few months later by the Federal District Court hearing the litigation, when it decisively stated:
The Court finds the transactions between ICANN and ICM described in the First Amended Complaint are commercial transactions.
ICANN established the .XXX TLD. ICANN granted ICM the sole authority to operate the .XXX TLD. In return, ICM agreed to pay ICANN money.
This is “quintessential” commercial activity and it falls within the broad scope of the Sherman Act. Even aside from collecting fees from ICM under the contract, ICANN’s activities would subject it to the antitrust laws. (Emphasis added)
Given that in the intervening four years ICANN has established more than a thousand additional gTLDs for which it collected a third of a billion dollars in application fees and receives continuing fees from, and that the impending IANA transition will sever the final tangential relationship between the U.S. government and ICANN, this week’s antitrust concession may well reflect a decision by ICANN Legal that it no longer made sense to play a losing hand – especially when assertions of weakened DOJ antitrust authority threaten to delay or scuttle the transition.
So the clear weight of these important letters is that the .Com wholesale price freeze will stay in place and can be extended by NTIA through 2024, and that ICANN has abandoned any claim to antitrust immunity.
On November 5, 2015 the Office of the U.S. Trade Representative (USTR) released the official text of the Trans-Pacific Partnership (TPP). That text consists of 30 separate Chapters totaling more than 2,000 pages, and is accompanied by four additional Annexes and dozens of Related Instruments. Only those who negotiated it are likely to have a detailed understanding of all its provisions, and even that probably overstates reality.
The TPP’s intellectual property (IP) provisions are contained in Chapter 18, which runs for a mere 74 pages. While the majority of these provisions address patents, copyrights, and trademarks, Article 18.28 deals with Domain Names (its full text is reproduced at the end of this article). While of direct relevance to the domain name industry as well as the trademark sector, these provisions were not deemed sufficiently important to merit a single word of explanation in the IP Rights issue paper or fact sheet issued by USTR.
There are twelve signatory nations to the TPP – Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the United States. Article 18.28 requires each of them to do two things with regard to domain names:
Neither of these provisions is earth-shattering, and to some degree they are even positive for the domain sector. Most major ccTLDs already provide access to non-judicial dispute resolution between trademark rights holders and domain registrants, and some even go beyond TPP’s requirements. The .US ccTLD, for example, which had already adopted the UDRP, announced in June 2104 that it was adopting the Uniform Rapid Suspension (URS) procedure which was developed for ICANN’s new gTLD program but is not yet a Consensus Policy applicable to legacy gTLDs. Further, the .US versions of both UDRP and URS require the rights holder to only demonstrate that “the domain name(s) were registered or are being used in bad faith”, while the ICANN versions require evidence of both bad faith registration and use. From a registrant’s point of view, the most positive element of the TPP language is its emphasis on a “fair and equitable” process and its preservation of court access.
As for online access to registrant data, the TPP’s deference to law and policy regarding privacy and personal data protection does not appear to attempt to influence the ongoing attempt by ICANN stakeholders to fashion a new database policy to replace WHOIS. Nor does it require ccTLDs to prohibit the use of privacy and proxy services (which are permitted, for example, by the .AU registry).
So Article 18.28 seems to at least satisfy the “do no harm” standard.
These provisions do not take effect until a signatory nation take the additional steps required under its law to formally adopt the TPP. In the U.S. that requires Congressional approval. President Obama’s November 5th letter to the House and Senate leaders concludes with this statement:
“Consistent with the Trade Priorities Act, I am sending this notification at least 90 days in advance of signing the TPP Agreement. My Administration looks forward to working with the Congress in developing appropriate legislation to approve and implement this TPP Agreement.”
The TPP faces stiff political opposition within the U.S. Most Democrat members of Congress are opposed to it due to strong resistance from unions and other interest groups.
While we don’t see them as being in the camp of either U.S. political party, the Electronic Frontier Foundation (EFF) recently declared that the publication of TPP’s IP provisions “confirms our worst fears about the agreement, and dashes the few hopes that we held out that its most onerous provisions wouldn’t survive to the end of the negotiations”. EFF took a far more jaundiced view than our own regarding the domain name provisions, observing that it “requires countries to adopt an equivalent to ICANN’s flawed Uniform Domain-Name Dispute Resolution Policy (UDRP), despite the fact that this controversial policy is overdue for a formal review by ICANN” (Note: Such UDRP review is expected to commence in the first half of 2016.)
With the U.S. elections just a year away, U.S. Presidential and Congressional electoral politics are converging to bear on the TPP’s prospects. Presidential Contender Bernie Sanders is a long-time and highly vocal detractor of the pact. His official position states that he:
“Opposed NAFTA, CAFTA, permanent normal trade relations (PNTR) with China, the TPP, and other free-trade agreements. These deals kill American jobs by shifting work overseas to nations which fail to provide worker protections and pay extremely low wages.”
Meanwhile, Hillary Clinton, who pronounced the TPP to be the “gold standard” of modern trade deals while serving as Secretary of State in the Obama Administration, reversed that stance on October 7th, shortly after the final text was published on WikiLeaks, stating:
“As of today, I am not in favor of what I have learned about it. I have said from the very beginning that we had to have a trade agreement that would create good American jobs, raise wages and advance our national security. I still believe that’s the high bar we have to meet. I’ve been trying to learn as much as I can about the agreement, but I’m worried. I appreciate the hard work that President Obama and his team put into this process and recognize the strides they made. But the bar here is very high and, based on what I have seen, I don’t believe this agreement has met it.”
That position, alleged by some to constitute a “flip-flop “, caused the Washington Post to opine in an editorial:
“Bowing to pressure from the Democratic Party’s ascendant protectionist wing, would-be presidential nominee Hillary Clinton has come out against President Obama’s freshly negotiated Trans-Pacific Partnership (TPP) trade agreement. The most hopeful thing to be said about this deeply disappointing abandonment of the president she served, and the internationalist tendency in Democratic ideology she once embodied, is that it is so transparently political… To be sure, Ms. Clinton salted her anti-TPP statement with qualifiers: “What I know about it.” “As of today.” “I am not in favor of what I have learned about it.” And so on. In other words, there is still a chance that later on, if or when she’s president, and it is to her advantage, she may discover some decisive good point in the TPP that would let her take a different position without, technically, contradicting herself. Cynical? Perhaps, but as we said, that’s the hope.”
On the Republican side, leading Presidential contender Donald Trump has made his TPP opposition clear, stating inimitably in a November 9th interview, ““The deal is insanity. That deal should not be supported and it should not be allowed to happen.” While Jeb Bush has voiced support for TPP, others vying for the GOP nomination do not appear to be eager to take a hard position that could antagonize an already disaffected and generally anti-establishment voter base, particularly within its “Tea Party” contingent. More establishment Republican corporate interests tend to favor the TPP, but even in that camp there are notable industries and major companies with strong concerns about various aspects of the agreement.
Congress voted in June 2015 to give the President “fast track” trade promotion authority for the TPP, but that does not mean that a vote will come quickly — just that the TPP text cannot be amended by Congress. The earliest Congress might vote on TPP is Spring 2016. But given that 2016 will be a politically charged year with control of the House, Senate, and White House all theoretically up for grabs, neither party is anxious to take a vote that could alienate millions of potential voters. So there’s a good chance that the final decision on TPP will be left to the next President and Congress sometime in 2017.
The TPP’s signatory nations do not include the largest economic power on the western shore of the Pacific, China, and that omission is to some extent meant to deliberately counter that nation’s economic designs for the Pacific Rim. As former U.S. Treasury Secretary Lawrence Summers just described that strategy:
“The Council on Foreign Relations, hardly a source of xenophobic or radical ideas, recently issued a report drafted by leading U.S. diplomats condemning this country’s efforts to build up China within the international economic order and calling for a “balancing strategy” that includes “new preferential trading arrangements. . .that consciously exclude China.” No small part of the case being made by the Obama administration for the Trans-Pacific Partnership (TPP) trade deal involves the idea that it will promote competitiveness vis-a-vis China and reduce China’s influence in determining global trade rules.”
But global investment flows route around trade policies just like the Internet routes around obstacles, and Chinese investors are today taking actions that may elevate the status of domain names in future trade agreements. Domain name registrations have recently been hitting record levels and, as reported in The Domains, most of the demand seems to be coming from purchasers in China who want to diversify out of equities and real estate and now view domains as an asset class with multiple valuable attributes, including good price appreciation potential.
That changing economic role for domains gives hope that, when the next multinational trade pact is under development, the domain investment industry will be well positioned to make its own case that domains must be viewed not just through the prism of potential trademark infringement but as a valuable intangible asset unto itself, and one that is equally deserving of uniform international recognition and protections.
Domain Name Provisions of the TPP:
Article 18.28: Domain Names
(a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, as approved by the Internet Corporation for Assigned Names and Numbers (ICANN) or that:
(i) is designed to resolve disputes expeditiously and at low cost;
(ii) is fair and equitable;
(iii) is not overly burdensome; and
(iv) does not preclude resort to judicial proceedings; and
(b) online public access to a reliable and accurate database of contact information concerning domain-name registrants,
in accordance with each Party’s law and, if applicable, relevant administrator policies regarding protection of privacy and personal data.
17 The Parties understand that such remedies may, but need not, include, among other things, revocation, cancellation, transfer, damages or injunctive relief.
On the evening of Tuesday, September 9th, Congressional leaders unveiled a 1,603 page, $1.01 trillion FY 2015 appropriations bill to fund the U.S. government through the end of September 2015. One provision of the omnibus bill would delay the IANA transition until after the September 30, 2015 expiration of the current contract between the NTIA and ICANN.
Language in the bill states:
SEC. 540. (a) None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration during fiscal year 2015 with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.
(b) Subsection (a) of this section shall expire on September 30, 2015.
That language, a modified version of the “Duffy Amendment” that was contained in the House version of the National Defense Authorization Act, would allow NTIA to start spending funds on a transition after exercising its first option to extend the contract.
In addition, the explanatory report language of the Commerce-Justice-State portion of the omnibus spending bill, in which the above language is contained, states the following:
Internet governance.-The agreement reiterates House and Senate language regarding the Internet Corporation for Assigned Names and Numbers (ICANN) and Internet Assigned Numbers Authority (IANA) matters and modifies Senate language by directing NTIA to inform appropriate Congressional committees not less than 45 days in advance of any such proposed successor contract or any other decision related to changing NTIA’s role with respect to ICANN or IANA activities. In addition, NTIA shall submit a report to the Committees on Appropriations within 45 days of enactment of this Act regarding any recourse that would be available to the United States if the decision is made to transition to a new contract and any subsequent decisions made following such transfer of Internet governance are deleterious to the United States.
This language appears to require NTIA to inform Congress 45 days prior to extending the IANA contract or taking any other decision in regard to it; as well as to submit a report to Congress within 45 days after the spending bill’s enactment regarding whether the US would have any post-transition recourse if subsequent decisions were deleterious to the U.S.
This final bill language has already been negotiated with and accepted by Senate Democratic and House Republican leaders and is likely to be enacted and sent to President Obama by the weekend. It is unlikely that the White House would veto the bill and risk a government shutdown over this IANA language (although other provisions could become sticking points between the Administration and Congress).
Rumors were already circulating in Washington that NTIA was prepared to extend the current IANA contract by at least six months in recognition of the fact that it may be impossible for the ICANN community to design and stress test enhanced accountability measures by the end of the current contract term, much less have them in place by then. So the bill may have little effect on the actual timetable for the transition. It remains to be seen what reaction to its enactment comes from ICANN, the ICANN community, and other nations.
There has been a lot of domain industry press attention lately to domain thefts. We don’t know for sure if this problem is becoming more acute or is just being reported on more often. But, regardless of the level of activity, we know that there are inadequate recovery and punitive remedies available at present for domain owners who experience theft of their valuable domain assets. Something is very wrong when a hacker can surreptitiously transfer a valuable domain and there is no reliable or cost-efficient means for recovering it.
ICA’s Board is therefore considering initiation of a Domain Theft Project (DTP) to address this issue, in the belief this is exactly the type of issue that ICA was established to address.
One component of the DTP would be to discuss the situation with leading registrars as well as ICANN’s Registrar Stakeholders Group to gather more information on the severity of the problem, as well as to better determine how these thefts are accomplished and what best practices on the part of both registrants and registrars might prevent them.
In addition, assuming that there will still be thefts occurring even if stronger preventative measures are adopted by registrars and registrants, the DTP will carefully explore at least three potential avenues of better redress for registrant victims of domain thieves:
1. Amending the UDRP to allow it to be used for the recovery of stolen domains. The exploration of this potential avenue will be very carefully conducted to assure that any potential UDRP revisions do not create new opportunities for scam artists to abuse the UDRP for domain hijacking. But UDRP reform will be on the table and under discussion within ICANN as of April 2015 as part of the review of new gTLD Rights Protection Measures (RPMs), so if an acceptable proposal can be developed it can be advocated for adoption within that review and reform context.
2. Amending Federal law to establish clear civil liability for illicit access to the computers of a registrar, and to also clarify that available equitable relief includes restoration of the domain to its original owner. This would likely involve the House and Senate Judiciary Committees. The biggest challenge here will probably not be getting the concept looked upon favorably but the larger context of amending the underlying statute, which inevitably brings in other players and complex issues. There’s also the reality that getting anything through Congress these days, no matter how worthy, is a big challenge. But the DTP’s initial focus would be on drafting a bill and seeking its introduction to focus attention and foster discussion.
3. Amending the Registrar Accreditation Agreement (RAA) to require registrars to preserve and publish title history. This may be somewhat difficult because the registrars are understandably inclined to push back against anything that involves more work or that may increase their liability. The RAA was also just amended in 2013 and that process involved one-on-one negotiations between the registrars and ICANN, with limited access and information provided to third parties. Nonetheless ICA has good contacts with the registrar community and can start discussions to explore their receptiveness, as well as whether they have ideas about other approaches. Perhaps one result will be to encourage registrars to compete in the marketplace on the basis of which provides the best anti-theft security.
In addition to the above initiatives, changes in Federal criminal law may also be worth exploring. ICA member and domain attorney Stevan Lieberman has recently dealt with the FBI and Department of Justice on this and is willing to contribute his experience and legal expertise and take the initiative on this potential aspect of the DTP. Steve’s experience in assisting the victim of the MLA.com domain theft, as well as other incidents, are detailed in this recent Huffington Post article — http://www.huffingtonpost.com/2014/09/29/domain-theft_n_5877510.html. Other ICA members have also volunteered to serve on the DTP, and we welcome further interest and participation.
Meanwhile, another recent article provides details regarding growing domain theft activity based in China —http://domaingang.com/domain-news/rise-dragon-domain-theft-china-gaining-momentum/. That suggests another avenue of possible effort – given the US Trade Representative’s efforts to curb IP piracy based in China and other nations, we could explore encouraging similar efforts against domain theft activities.
The DTP can also encourage greater attention to this problem by both domain industry and general media outlets. Public attention and information will be a key component of preventative best practices as well as making the case for needed reforms. This is a problem that affects more than just the domain investment industry; small businesses are particularly vulnerable and can suffer devastating losses when their customers can no longer reach them at a website they have used for years.
The DTP will also collect anecdotal information about individual domain thefts, including details of how the theft occurred, how long the time period was between the theft and its discovery by the registrant, and whether the domain(s) was recovered. We will need to build a database of actual domain theft incidents to make a case for changes in Federal law and ICANN policies, as well as to help determine whether the measures we are contemplating will be effective and comprehensive.
This is an ambitious project and its goals will proceed on different timetables and take considerable effort to achieve. But we know that the current situation is not tolerable – and if domain investors don’t take the lead for change then who will?
It is now being broadly acknowledged that, as expressed unanimously by all GNSO constituencies at the recent ICANN London meeting, “as part of the IANA transition, the multi-stakeholder community has the opportunity and responsibility to propose meaningful accountability structures that go beyond just the IANA-specific accountability issues”.
In a July 22nd Keynote Address at the American Enterprise Institute, NTIA head Lawrence Strickling — whose agency must approve any IANA transition plan developed by Internet stakeholders – made this linkage an explicit element of U.S. government policy:
“Also this spring, in response to community discussions at its Singapore meeting, ICANN announced a separate process to address ways to improve its overall accountability. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. This important accountability issue will and should be addressed before any transition takes place.” (Emphasis added)
While ICANN and its multistakeholder community work to launch the accountability coordination group, a group of companies, associations and individuals have been laboring in Washington to articulate the principles for an enhanced ICANN accountability framework. On July 26th the middle-of-the road Information Technology and Innovation Foundation (ITIF) published “KEY PRINCIPLES FOR COORDINATION OF INTERNET UNIQUE IDENTIFIERS”. As explained in a blog post accompanying their publication:
“As the Information Technology and Innovation Foundation (ITIF) told Congress in testimony earlier this year, the transition away from U.S. oversight creates unique risks and challenges for Internet governance, many of which we may not be able to anticipate today. Without the current oversight provided by the United States, ICANN will not be accountable to anyone and will only be motivated by the interests of those individuals who control the organization. This makes it incumbent on the NTIA, the ICANN leadership, and global Internet stakeholders to insist that a comprehensive set of principles for the responsible management of Internet resources be firmly embedded within ICANN before the transition is allowed to be completed.
In pursuit of that goal, a number of stakeholders—companies, associations, and individuals (including ITIF)—have worked to develop an initial draft of these key principles. As outlined in the proposal, these principles should include a clear separation of the policy making, dispute resolution, and implementation functions; protection from government capture; complete transparency in ICANN’s processes; broad consensus for policy decisions; and significant budget and revenue limitations. Above all else, the global community of ICANN stakeholders should remain the ultimate overseer of the DNS.”
The Principles (reproduced at the end of this article) reaffirm the community of ICANN stakeholders as the ultimate overseer of the DNS. They call for clear separation of ICANN’s policy making, dispute resolution, and implementation functions. Policy would continue to be centered in ICANN’s supporting organizations (SO) and advisory committees (AC) – which would also confirm the CEO selection and approve members of an Independent Dispute Resolution Panel (IDRP). That IDRP would have substantial disciplinary authority, including the power to remove Board and staff members in egregious circumstances.
ICANN’s executive functions would be limited to implementing DNS policies and to recommending policy changes to the SOs and ACs; and to overseeing DNS technical functions outsourced to expert third parties. While remaining a California non-profit corporation, it would establish two separate Boards – one for policy implementation and the other for corporate management issues.
While coordination with governments would be encouraged, capture by multilateral forces would be safeguarded further by prohibiting the CEO or any Board member from being a member of any government or government-controlled organization. Transparency would be enhanced by an annual independent accounting firm audit, and by replacing the opacity of current Board proceedings with the required release of transcripts and detailed minutes of all meetings.
All rights, responsibilities and authorities that were not explicitly granted to ICANN would remain vested in its stakeholder community. ICANN’s budget would be constrained, with changes subject to stakeholder approval. Registry and registrar payments to ICANN would be nondiscriminatory, and their own fees to customers would not be subject to ICANN regulation.
Finally, and most importantly, adoption and effective implementation of such guiding principles would need to be completed prior to the completion of the IANA functions transition, with the principles themselves being embedded within ICANN’s Articles of Incorporation and Bylaws so that they are fully enforceable by the IDRP.
Some of these Principles – such as the call for ICANN to establish two separate Boards – may generate considerable controversy. Others, such as the call for ICANN non-regulation of registry and registrar fees, already reflect generally established practice (although the current .Com price cap is a result of a U.S. government-imposed restriction and is beyond ICANN’s own jurisdiction).
But there can be little doubt that these Principles are a good starting point for what the elements of enhanced ICANN accountability actually entail. They also illustrate that once the basic principles are debated and agreed upon there will remain substantial detail work to flesh out the practical points of their implementation. All this illustrates that this is a tremendously complex task that may well extend beyond September 2015, the end of the first phase of the current IANA contract between ICANN and the U.S. government.
These Principles received a significant endorsement on August 4th, when the highly respected and influential Center for Democracy and Technology (CDT) published a blog post welcoming them. As noted in that posting, “CDT has welcomed the US government’s decision to end the last vestiges of control over the IANA functions.” Nonetheless, ICANN’s actions since the NTIA announcement have convened it of the need for a strong accountability process producing robust recommendations:
“On May 6, 2014, ICANN initiated a consultation intended to develop a plan for how it can remain accountable in the absence of its historical contractual relationship to the US government. The key question has become whether, after the US cuts the umbilical cord, ICANN will be subject to too little accountability, or even worse, whether it will become “accountable” to other governments or special interests that will exercise more intrusive control than the US ever did. The prospect of an unaccountable ICANN, or one subject to control by governments or special interests, has enormous implications for the open, innovative, global Internet.
CDT has become increasingly concerned with the slow pace of the accountability process and the apparent desire of ICANN to end its relationship with the US government and to take over the IANA function itself before a new accountability structure is in place. In our view, it is essential that the accountability process move in step with the IANA transition process and that the accountability question be answered before ICANN assumes control of the IANA. To complete a transition that sees ICANN implementing the IANA functions without appropriately strengthened accountability mechanisms would be irresponsible.
In this context, we welcome one very positive development. Until recently, the discussion on strengthening ICANN’s accountability had been plagued by a lack of clear guiding principles and concrete recommendations for improvements. However, last week a diverse group of stakeholders took a major step forward with the publication of “Key Principles for Coordination of Internet Unique Identifiers.” The document offers a sound foundation upon which further discussions on ICANN accountability can be based. ” (Emphasis added)
CDT’s concerns about the pace of the accountability process and ICANN’s priorities seem well-founded. On the same day this blog post was published ICANN unveiled a proposal for the accountability process that would corral ICANN’s stakeholders within a Community Assembly that would largely be a powerless discussion forum – while the real accountability decisions, and issuance of the final report and recommendations, would take place in a separate Community Coordination Group dominated by seven advisors selected by ICANN’s Board Governance Committee. These ICANN-appointed advisors would further engage with other “experts” at their own prerogative; and ICANN would control the Secretariat responsible for logistical and other support of both bodies. This proposed bifurcated structure is unnecessarily complicated and appears designed to sublimate the views of ICANN’s community to those of Board-selected advisors. It would also lead to unnecessary delay that would almost surely leave the accountability process lagging far behind that for the IANA functions transition – leading to a potential separation scenario of the very type that CDT deems “irresponsible”. There is considerable irony in the fact that ICANN’s original justification for separating the IANA transition and ICANN accountability processes was the former should have the input of global Internet constituencies while the latter was a matter to be decided by ICANN stakeholders – yet now ICANN has proposed an approach to the accountability issue that would dilute the ability of its stakeholders to recommend sweeping changes.
It remains to be seen whether the ICANN community will accept this proposed secondary role and or push back hard against it. It is difficult to imagine anything as strong or sweeping as the reforms advocated in the ITIF-published Principles emerging from the structure and resulting process that ICANN has just proposed.
The Principles unveiled by ITIF will not be the sole contributors to the coming discussion. The conservative Heritage Foundation has articulated its own “Required Reforms and Standards for ICANN Transition”. While its recommendations overlap with many of the ITIF Principles, there are also significant departures – such as a call for “a new external, private oversight board for ICANN notionally called the Internet Freedom Panel, that is representative of users and possesses veto power over ICANN policy decisions that threaten the freedom, security, stability, and resilience of the Internet”. Another provision advocates that “ICANN’s bylaws should be amended to specifically commit the organization to oppose efforts to constrain free speech, online discourse, or assembly”, a concept that could well be seconded by global Internet freedom civil society groups. Another daring proposal, based on “a recent white paper by Milton Mueller and Brenden Kuerbis for the Internet Governance Project”, would separate the IANA and related technical functions into a “new IANA consortium [that] should be a private nonprofit company financed and managed by the TLD registries”. Other provisions would replace the current method of Board selection with a more transparent and direct process, and replace ICANN’s exception-riddled Documentary Disclosure Information Policy (DDIP) with a new policy based on the U.S. Freedom of Information Act (FOIA) to assure greater transparency. These are but a selective sample of the intriguing ideas put on the discussion table by Heritage.
ICANN’s stakeholders are of course global, and the U.S. contingent has no monopoly on good ideas or commitment to enhanced accountability. What they do have, however, is the ability to bring their concerns and ideas directly to Congress and the NTIA. There is a possibility that when Congress returns in September either the ITIF or Heritage principles, or both, may be introduced as Congressional Resolutions. Congress has a long history of bipartisan backing for the multistakeholder model of Internet governance. As debate shifts away from whether the IANA transition should occur and onto the accountability principles that must accompany it, there is a good possibility that further consideration will be less divisive and more bipartisan.
It seems clear that a diverse group of stakeholders are ready and willing to do the hard work of proposing, debating, and perfecting enhanced accountability measures that will help ensure that a post-IANA transition ICANN remains an organization institutionally bound to operate through a bottom-up multistakeholder policy development process led by the private sector. What remains unclear is whether ICANN’s current Board and senior staff will trust its community of stakeholders enough to let them proceed on their own – or will push to implement the IANA transition before an accountability plan is completed, while simultaneously working to control the accountability process and dilute its final output.
These are the Principles published by the ITIF:
KEY PRINCIPLES FOR COORDINATION OF INTERNET UNIQUE IDENTIFIERS
On March 14, 2014, the U.S. National Telecommunications and Information Administration (NTIA) announced its intention to transition key IANA functions to the global multistakeholder community. NTIA laid out four conditions for this transfer:
Support and enhance the multistakeholder model;
Maintain the security, stability, and resiliency of the Internet DNS;
Meet the needs and expectations of the global customers and partners of the IANA services; and,
Maintain the openness of the Internet.
NTIA also advised that it will not accept a proposal that replaces the NTIA role with a government-led or inter-governmental organization solution. To ensure appropriate coordination of Internet unique identifiers, it is essential that ICANN be structured in a way that meets each of these essential conditions before the transition. These key principles and mechanisms should be embedded into the structure of ICANN through the multistakeholder accountability process:
1. Community of Stakeholders as Ultimate Authority: The community of ICANN stakeholders should be the ultimate overseer of the DNS, responsible for: promoting a single, decentralized, open, and interoperable Internet; preserving the integrity, transparency and accountability of IP numbers and their assignments; managing domain names, and protocol number assignments; maintaining the security, stability and resiliency of the DNS; and meeting the needs and expectations of global customers and partners of the DNS.
2. Separation of Functions: To ensure the form of oversight and accountability that is appropriate for distinct activities, there should be a strong and clear separation of these three functions: policy making, dispute resolution and implementation.
3. Policy Making Function: ICANN’s existing structure of Supporting Organizations (SOs) and Advisory Committees (ACs), which provide technical and policy guidance and which comprise its bottom-up, consensus multi-stakeholder model, should continue to be responsible for policy making. Their membership should be representative of the community of ICANN stakeholders and of the different regions of the world, including developing and developed countries. They should also confirm nominees for ICANN CEO and approve members of an independent dispute resolution panel.
4. Dispute Resolution Function: ICANN’s Independent Review Panel should be expanded to ensure a balanced structure with multi-stakeholder participation, and strengthened into a new independent dispute resolution panel responsible for resolving disputes involving ICANN and endowed with the final authority to impose discipline and sanctions, and to remove Board and staff members in defined egregious circumstances. This remedy process should be transparent, accessible and timely. This is critical to ensure that the ICANN Board of Directors and ICANN’s leadership are accountable to the community of ICANN stakeholders and not responsible for adjudicating challenges to their own decisions.
5. Implementation Function: ICANN’s limited executive function should be confined to implementing policies pertaining to the coordination of Internet unique identifiers and to recommending policy changes for consideration and ultimate decision-making by the SOs and ACs. ICANN should oversee the technical functions of the DNS but should outsource technical operations to organizations with a proven track record. ICANN should remain a non-profit corporation operating under California law, but governed by two boards of directors separately focused on policy implementation and corporate management issues. Policy implementation should be done in close coordination with SOs and ACs who have the ultimate responsibility to ensure that policies they develop are implemented as intended.
6. Protection from Government Capture: Government is one of the core stakeholders within the multi-stakeholder model, and government involvement is appropriately conducted through the Governmental Advisory Committee, in coordination with the SO/AC policy development process. In particular, neither the CEO nor the members of either Board of Directors should be a member of a government or government-controlled organization. ICANN should prudently engage with government officials, focusing primarily on issues pertaining to the coordination of Internet unique identifiers, whether directly or indirectly through a third party and such engagements and the topics covered should be made public in a timely fashion.
7. Transparency: ICANN should be audited annually by an independent accounting firm, and transcripts and detailed minutes of all meetings, including those of ICANN’s Board of Directors, as well as complete documents and records should be made readily available.
8. Specific Rights and Responsibilities Appropriate for Each Function: Each function should only encompass those explicitly assigned rights, responsibilities and authorities that have been formulated through the multistakeholder accountability process. The accountability process will identify all significant functions and responsibilities, and designate them appropriately and explicitly. The accountability process should be thorough, and map specific rights, responsibilities and authorities to the appropriate function. All other rights, responsibilities and authorities should be reserved to the community of ICANN stakeholders.
9. Consensus: A significant supermajority should be required for final action on all policy decisions to demonstrate broad support by the community of ICANN stakeholders.
10. Budget and Revenue Limitations: ICANN’s budget and the revenue to support it should be limited to meeting ICANN’s specific responsibilities and should not change without SO and AC approval and the agreement of the registries and registrars who pay ICANN fees.
11. Equitable Agreements: All registries and registrars should operate under equitable agreements with ICANN that set nondiscriminatory fees to be paid to ICANN in support of its budget. ICANN may not set or regulate fees charged by registries or registrars to their customers.
12. Prior Adoption: These principles and their assured implementation should be adopted and made effective prior to the transfer of the IANA contract to ICANN, or to any other party that replaces the U.S. as contract counterparty; should be embedded in ICANN’s Articles of Incorporation & By-Laws so that they are fully enforceable by the new independent dispute resolution panel; and should form the basis for the replacement of NTIA’s current DNS agreements.
The Senate Appropriations Committee just reported out on June 5th its version of the Commerce-Justice-State Departments Appropriations bill for FY 15. In the course of its deliberations it added a consensus amendment on the IANA transition offered by Sen. Mike Johanns (R-NE). The amendment reads:
1. Amendment proposed by Senator Johanns
On page 24 of the report, in the paragraph beginning with “Internet”, strike the sentence beginning with “While” and replace with:
“While NTIA has stated that it will not accept a proposal that includes government-led or intergovernmental control over ICANN the Committee directs NTIA to conduct a thorough review and analysis of any proposed transition of the IANA contract. This review shall ensure that ICANN has in place a NTIA approved multi-stakeholder oversight plan that is insulated from foreign government and inter-governmental control. Further, the Committee directs NTIA to report quarterly to the Committee on all aspects of the privatization process and further directs NTIA to inform the Committee, as well as the Committee on Commerce, Science, and Transportation, not less than 7 days in advance of any decision with respect to a successor contract.”
In addition to that statutory language, the Committee report on the bill, which creates its “legislative history”, contains this relevant passage:
Internet Corporation for Assigned Names and Numbers [ICANN].-The Committee remains concerned that the Department of Commerce, through NTIA, has not been a strong advocate for American companies and consumers and urges greater participation and advocacy within the Governmental Advisory Committee [GAC] and any other mechanisms within ICANN in which NTIA is a participant. The Committee strongly encourages NTIA to be an active supporter for the interests of the Nation within ICANN and to ensure that the principles of accountability, transparency, security, and stability of the Internet are maintained for consumers, business, and the Government. The Committee awaits the past due report on NTIA’s plans for greater involvement in the GAC and the efforts it is undertaking to protect U.S. consumers, companies, and intellectual property.
Parsing the amendment’s language, the requirement that NTIA conduct a thorough review and analysis of any proposed IANA transition plan amounts to telling it to do its job properly; implicit in this requirement is that the analysis be shared with Congress. The requirement that the review ensures a multi-stakeholder oversight plan links the IANA transition to the enhanced ICANN accountability that many groups have already said must accompany and be implemented simultaneously with any IANA transition plan. The requirement for quarterly NTIA reports to Congress on all aspects of the “privatization process” reinforces that it must assure continued private sector leadership, and that Congress does not want to be kept guessing as to where things stand. As for the requirement that Congress receive at least seven days’ advance notice of any NTIA decision on a successor IANA contract, that seems too brief an interval for meaningful Congressional review – but this amendment will not likely be the final form of any language sent by Congress to the President.
As for the accompanying Report language, the fact that the Committee is dissatisfied with NTIA’s advocacy for US interests within the GAC raises the implicit question of whether the IANA transition itself is in the national interest. And the inclusion of a note of displeasure regarding “the past due report on NTIA’s plans” indicates impatience with NTIA’s responsiveness to Congressional directives.
The House-passed counterpart to this CSJ Appropriations bill contains the Duffy Amendment that would deprive NTIA of any funds to carry out the IANA transition. While that flat prohibition has close to zero chance of being accepted by the Senate, the inclusion of this IANA-related language significantly enhances the chances for compromise language being worked out during future negotiations to reconcile the bills. The middle ground could well be a modified version of the Shimkus Amendment (incorporating the full DOTCOM Act) that was attached to the Defense Authorization Act in the House, as it is now clear that both sides of Capitol Hill want some degree of assurance that they will receive updated reports on the progress of IANA transition deliberations as well as some opportunity to review a succession plan prior to its implementation. There also remains a strong possibility that the Senate Commerce Committee will hold an IANA oversight hearing prior to full Senate consideration of this CSJ bill, and if that happens it could provide new fodder for related floor amendments.
In a related development, also on June 5th a group of six House Republicans, including the Chairman and Vice-Chair of the Energy and Commerce Committee, sent a letter to the Governmental Accountability Office “requesting an examination of the Obama administration’s recent proposal to transition Internet oversight to the global multi-stakeholder community”. The letter asks GAO to address such issues as potential national security implications and other possible risks of the IANA transition, how to assure against a future multilateral ICANN takeover, future enforcement and enhancement of the Affirmation of Commitments (AOC), and useful evaluation criteria beyond those set by the NTIA. This request implements the study portion of the Shimkus Amendment but lays aside its one year delay. By taking this action the way may be better cleared for a House-Senate compromise agreement that assures a meaningful Congressional oversight and review role on the transition.
Meanwhile, on June 3rd a group of seven civil society organizations sent a letter to Senate Majority Leader Harry Reid as well as the leaders of key Senate Committees expressing their opposition to the Shimkus Amendment, which would delay adoption of any IANA transition plan forwarded by ICANN for up to one year while the GAO analyzed it.
The organizations base their opposition in a belief that:
[T]he DOTCOM Act will give additional ammunition to foreign governments and stakeholders who oppose Internet freedom, bolstering their argument for an overhaul of the current Internet governance system to facilitate greater control by non-democratic governments or international organizations… Passage of the DOTCOM Act would unnecessarily interfere with the announced transition process, which is still in development through an open consultation convened by ICANN. Further, it would damage the reputation of the United States as a champion of multi-stakeholder Internet governance and contradict previous bipartisan statements of Congressional support for the multi-stakeholder governance model.
The letter’s final operative paragraph reads:
It is critical that the IANA transition proposal development process be fair and transparent, and we welcome Congressional interest and participation as an equal stakeholder in the process. However, efforts to interfere with or delay this transition process, or require the Congressional approval beyond the criteria suggested by NTIA, will neither achieve the goals of the bill nor reflect Congress’s previously stated position on Internet governance. We therefore strongly urge the Senate to oppose the Shimkus Amendment #6 to the FY15 NDAA and other efforts to block this transfer and to show support for an Internet that is free, open, and guided by global, multi-stakeholder governance principles.
While these views are sincere and all the signatory groups do good work on behalf of Internet freedom and privacy, we doubt that Russia, China, Iran and other nations which already restrict their own citizens’ Internet freedom need any new incentives or arguments to push for multilateral control of the DNS.
And there is a bit of a mixed message in welcoming Congress as an “equal stakeholder” in the transition process while essentially asking it to trust in and defer to NTIA’s determinations on a decision that, once made, cannot be redone.
It’s doubtful that the Senate will accept the Shimkus Amendment/DOTCOM Act in the form sent over from the House. But this new Senate Appropriations bill and House GAO study request are the latest indicators of evolving bipartisan and bicameral interest in the IANA transition — and that could well lead to the negotiation of compromise language adopted on a bill funding three of the most important Executive Branch agencies that assures a truly equal role for Congress.
The House of Representatives has passed another measure related to the proposed IANA functions transition, and has again attached it to “must pass” legislation. This move ups the ante and may well be the final straw that compels the Senate Commerce Committee to hold its own oversight hearing on the IANA transition proposal.
On May 30th the House adopted the Duffy Amendment to the Appropriations bill funding the Commerce, Justice, and State Departments in FY 2015. The final vote on the amendment was 229 in favor and 178 opposed – it was fairly partisan outcome, with only ten Democrats voting aye while just one Republican voted nay. The amendment not only prohibits the Commerce Department from surrendering the US counterparty role on the IANA contract but also slashes the NTIA’s budget by nearly $15 million. The underlying bill passed later that evening.
In speaking for his amendment, Rep. Duffy (R-WI) stated:
Thank you, Mr. Chairman. I think most Americans are aware that the President has recently stated that he intends to transfer the core functions of the internet to an international or foreign body.
What my amendment does today will prohibit the President from using any of these funds to relinquish control of those core functions to the internet. I think this is an incredibly important amendment because America in our zest for freedom of speech has made sure that the internet an open forum for dialogue, an open forum for ideas. By relinquishing these rights, our core functions to a foreign body, I don’t think we will retain the current system of the internet and the current rights or freedom of speech that internet currently enjoys. if you look at stakeholders who have a say in how the internet is run, I think when we use the term stakeholders what we are referring to are foreign governments and corporations, I think we have to ask the question, do we think that China, that Russia, that Iran who have a say in the core functions of the internet have the same concern for freedom of speech that we Americans do? I think it’s important that this institution use its control of the purse strings to limit the president’s authority to transfer those core functions to this foreign body. With that I retain the balance of my time.
Adoption of the Duffy Amendment follows by one week House passage of the Shimkus Amendment to the Defense authorization bill. That amendment would mandate up to a one-year delay in carrying out the transition while the GAO studied and reported to Congress regarding the implications of any IANA transition plan forwarded by ICANN for NTIA review. Rep. Shimkus (R-IL) said via his press office that he also voted for the Duffy measure “to send a message that Congress is prepared to put a stop to the IANA transition altogether if the Administration continues to disregard the potential risks and dismiss his reasonable call for GAO review.” He reiterated his view that “Congressional oversight [is the] best path forward” and said he is “hopeful the Senate will adopt that approach as well.”
However, Commerce Committee member Rep. Mike Doyle (D-PA) responded to the amendment’s passage by declaring, “I am again disappointed by the irresponsible actions taken by House Republicans to delay NTIA’s transition of the IANA functions…Stakeholders from around the Internet including ISPs, edge providers, industry associations, technology experts, and public interest groups, all support NTIA’s transition plan. I will work with my colleagues in the House and Senate to ensure that these provisions are removed as this bill moves forward.”
Two balls are now in the Senate’s court, and a negotiated version of the Shimkus GAO study Amendment would certainly appear a more palatable course for the Administration than the flat IANA transition prohibition and NTIA budget slashing of the Duffy Amendment. Neither bill will be on the Senate floor in the immediate future, which gives the Senate Commerce Committee more than enough time to hold its own IANA functions transition and ICANN accountability oversight hearing.
A Senate Commerce hearing could give NTIA a platform to demonstrate that it is effectively overseeing the process and will not just rubber stamp any proposal served up by ICANN. It could also inquire into whether the IANA transition and enhanced accountability processes proposed by ICANN adequately comport with NTIA’s request that it convene stakeholders for the purpose of creating acceptable plans — without trying to control that process or its outcome. ICANN received broad resistance to its original transition plan process blueprint and has yet to announce whether it will respond with course corrections.
The Shimkus Amendment to the $601 billion National Defense Authorization Act (HR 4435) passed the House of Representatives yesterday on a mostly partisan vote of 245 – 177. While all 228 Republicans present and voting supported the amendment only 17 Democrats voted “aye”, with 177 in opposition. Final passage on the entire bill was a bipartisan vote of 325-98.
The Senate has not yet passed its version of a FY 2015 Pentagon funding bill, and once it does all the differences between the two versions must be reconciled before it can be sent to President Obama for his signature. There’s no indication yet whether a similar amendment will be offered in the Senate or whether enough Democratic votes can be picked up to pass it on that side of Capitol Hill.
The Shimkus amendment embodied the text of the DOTCOM Act. It would prohibit the NTIA from transitioning oversight of the IANA root zone functions from US oversight to a multistakeholder entity until Congress had received a report from the GAO analyzing the implications of the transition plan. It would provide GAO with a one-year period to complete that study, with the clock starting when ICANN transmitted a transition plan for NTIA review. As no such plan is expected to be forthcoming until sometime in 2015, the Act would essentially make it all but impossible to complete the transition by the September 2015 end date of the current IANA contract, and would thus trigger the need for a two-year extension – an option already provided for in that contract. NTIA head Larry Strickling and ICANN CEO Chehade stressed in recent Congressional testimony that September 2015 was just a goal and not a deadline. But we’d wager that ICANN very much wants to avoid a contract extension, and parties outside the US want IANA globalization by 2015 as expressed in the final document issued at last month’s NETmundial meeting in Brazil.
Meanwhile, in the Senate, Senator Marco Rubio of Florida and eight other Senate Republicans have just sent a letter to Commerce Committee Chairman Jay Rockefeller asking that the Committee hold an oversight hearing on the IANA transition proposal. With the DOTCOM amendment on its way over from the House, and with the House expected to shortly pass a Department of Commerce appropriations bill that slashes NTIA funding to deny it the monetary capability to carry out the transition, it would appear to be a good time for the Senate to start informing itself on the matter. Rockefeller has shown past interest in ICANN, having held oversight hearings on the new gTLD program and most recently sending a letter to NTIA raising concerns about .Sucks and similar new gTLDs. Any Senate Commerce oversight hearing might well include a look at the status of the new gTLD program, as it is the largest and riskiest effort ever undertaken by ICANN and the market and operational status of the new gTLD rollout might be viewed as indicative of its readiness to sever its last formal connection with the US government.
The text of the Rubio letter follows:
May 21, 2014
Dear Chairmen Rockefeller, Pryor and Ranking Members Thune and Wicker:
We are writing to respectfully request that the Senate Committee on Commerce, Science, and Transportation (“the Committee”) hold a hearing to review the National Telecommunications and Information Administration’s (NTIA) announcement to transition oversight of certain Internet domain name functions to the global multistakeholder community. This transition, if it occurs, could have profound consequences on the future of Internet governance and freedom, and therefore deserves a close examination by the Committee.
Last Congress many of us were leaders on S. Con. Res. 50 (SCR 50), which reinforced the U.S. government’s opposition to ceding control of Internet governance to the International Telecommunications Union (ITU) or to any other governmental body. By unanimously passing SCR 50, Congress sent a strong message of support for the existing bottom-up, multistakeholder approach to Internet governance. The current model has enabled individual empowerment and technological advancement around the world, and has ensured the Internet remains free from the control of governments and intergovernmental organizations.
Congress must once again lead the cause for Internet freedom. All of the signatories of this letter also sent several questions to NTIA in March. While we appreciate NTIA’s response, there are a number of unresolved questions concerning NTIA’s decision, as well as uncertainty about how this transition will unfold. NTIA’s announcement must be carefully considered and understood, which is why the Committee must conduct rigorous oversight of this decision and process.
Since the announcement by NTIA, the United States has sent delegations to the Internet Corporation for Assigned Names and Numbers (ICANN) 49 conference in Singapore and to the NETmundial meeting on the future of Internet governance in Brazil. NTIA’s decision and ICANN’s future role were discussed at both conferences, and we understand that countries like China and Russia pushed back against the multi-stakeholder model and toward greater control over the Internet.
It is important that the Committee, Congress, and the American people hear from NTIA, members of the U.S. delegation, and other Internet stakeholders about how these conferences went and what the global community is proposing. Chairman Rockefeller, when the Committee held a hearing in December 2011 on ICANN’s expansion of top level domains, you stated:
As the Senate Committee tasked with examining issues related to the Internet, it is critical that we understand what this will mean for the millions of Americans who use the Internet on a daily basis and the thousands of businesses and organizations that now depend upon the Internet to reach their customers and members.
That statement certainly applies today to NTIA’s proposed transition. As this process unfolds and NTIA engages the global Internet community, it is imperative the Committee exercise its jurisdiction and conduct careful oversight on behalf of the American people to ensure Internet freedom is protected. The House has already held two hearings, and the global Internet community continues to convene. We must do the same. This announcement and the outcome of this proposed transition are too important for the Committee to remain silent. We appreciate your consideration of this request and look forward to working with all of you on this important issue.
In an unanticipated move a third Committee of the US House of Representatives has weighed in with concerns regarding the NTIA’s proposed transition of the US role as counterparty to ICANN’s IANA functions contract to one with the “global multistakeholder community”.
On May 13th the House Armed Services Committee Report for HR 4435, the Defense Authorization bill, was released. It contains language referring to the ICANN transition and, in particular, the .Mil top level domain which is administered by the US Department of Defense Network Information Center (NIC, which also runs the g-root authoritative root server — while the h-root server is operated by the US Army Research Lab). The Report language (reproduced at the end of this post) questions whether .Mil, which has always been available solely for US military operations, will remain protected post-transition – and also states that “any negotiations that occur should include verifiable measures for maintaining a separation between the policymaking and technical operation of root-zone management functions and that such protections should be a red line in interagency discussions and U.S. Government positions.” (Emphasis added) The introduction of US national security concerns brings a new element into discussions of the IANA transition.
This latest action follows on the heels of IANA-related steps recently taken by two other House Committees:
The House will likely take up The Commerce, Justice, Science and Related Agencies Appropriations Act for FY2015, which contains that cut in NTIA funding, next week. Further, we have just learned that Rep. John Shimkus, lead sponsor of the DOTCOM Act, has filed the text of that legislation as an amendment to be offered to the Defense Authorization bill that is currently being considered on the House floor, and we expect both it and the underlying bill to pass the House.
All of these prior actions were taken on party-line votes in the Republican-controlled and highly polarized House, and next week’s House floor vote will likely follow that pattern. While such Senate Democrats as Robert Menendez and Mark Warner have expressed concerns about the IANA transition, we’d wager that if these proposals are passed by the House and sent over to the Senate they will never receive a vote so long as Harry Reid is the Democrat’s Majority Leader. Senate Democrats will also likely resist accepting the House provisions if a conference committee is appointed to seek resolution of the different positions on the appropriations bill.
However, given that the earliest goal for completing the IANA transition is September 2015, when the current contract term expires (although the US has the option of extending it for two more 2-year terms) the situation could change dramatically if Republicans succeed in gaining control of the Senate in the November 2014 elections. Most pollsters and election analysts give them a slightly better than even chance of doing so, given President Obama’s current low approval ratings as well as the historic trends for mid-term Congressional elections in a President’s second term. Yesterday’s primary results, in which Senate Minority Leader Mitch McConnell and other “establishment” GOP candidates defeated “tea party” challengers probably enhance that possibility of Republican Senate control in 2015-16.
ICANN’s initial proposal for both the process and scope of IANA transition discussions has already encountered broad and vocal opposition. Its new proposal for a parallel process to determine enhanced accountability mechanisms may prove equally controversial (we’ll be writing more on that shortly). While it remains to be seen how ICANN will respond to criticism of its proposed pathway, the NTIA has made clear that it expects it to convene an unbiased community discussion that results in a transition plan and accompanying accountability provisions that are credible and have broad consensus support. That deliberative process will take some considerable time, and in the interim the US political context could undergo significant alterations.
Here’s the Armed Services Committee Report language—
The committee is aware of a recent proposal by the Department of Commerce to start the process of transferring the remaining Department of Commerce-managed Internet Assigned Numbers Authority (IANA) functions to the global multi-stakeholder community. The committee is also aware that such a transition is supported by the Administration, many in industry, and the international community.
The committee urges caution in such discussions to understand the full ramifications of any transition of responsibility, since the United States has played an important role in overseeing the stability of the Internet. As noted in recent testimony before the Committee on the Judiciary of the House of Representatives, “Any pledge, commitment, or oath made by the current ICANN [Internet Corporation for Assigned Names and Numbers] leadership is not binding unless there is some accountability mechanism in place to back up that promise. Until now, the United States has served that role. If the U.S. Government is no longer providing that stability, an alternative mechanism is needed to ensure that ICANN is held accountable to the public interest.” Additionally, as this testimony points out, “U.S. oversight has served as a deterrent to stakeholders, including certain foreign countries, who might otherwise choose to interfere with ICANN’s operations or manipulate the Domain Name Servers for political purposes. For example, a country may want to censor a top-level domain name or have ICANN impose certain restrictions on domain name registries or registrars.”
Because of the Department of Defense’s equities in a secure and transparent Internet governance system, the committee believes it is important to ensure that any new Internet governance construct includes protections for the legacy .mil domains and maintains the associated Internet protocol numbers. Furthermore, the committee believes that any negotiations that occur should include verifiable measures for maintaining a separation between the policymaking and technical operation of root-zone management functions and that such protections should be a red line in interagency discussions and U.S. Government positions.
Note: This is an updated version of a story that first appeared at http://www.circleid.com/posts/20140515_house_committees_taking_aim_at_iana_transition_proposal/ .