Late on the evening on April 22nd the CWG-Stewardship on the IANA Naming Functions issued its second Draft Proposal for a 28-day public comment period that closes on May 20th. Information about the Proposal can be found in a news announcement and at the public comment page.
ICANN has scheduled a 90-minute explanatory webinar on the proposal on Friday, April 24th at 6:00 and 14:00 UTC. Individuals who wish to participate should refer to the Webinar announcement for registration instructions.
ICA is concerned that the 28-day comment period, cut by thirty percent from the standard 40-day period used for other ICANN matters, may be insufficient to address a document of this importance and length. That is particularly true because several sections of the 90-page draft are marked as “Under Development” or “Draft and Under Development” indicating that this remains an incomplete work in progress.
Indeed, the explanation provided by the CWG notes that, “During the Public Comment period, the CWG-Stewardship will continue to assess the implications of the proposed post-transition structure (section IV) and the fulfillment of NTIA requirements (section V). These sections depended largely on the completion of Section III and therefore are in outline form only at this time.” (Emphasis added)
The referenced Section III of the Proposal is the very important “PROPOSED POST-TRANSITION OVERSIGHT AND ACCOUNTABILITY”. In this regard the CWG explains that the critical details will be based on the unfinished work of the separate CCWG-Accountability:
DEPENDENCIES ON THE CCWG-ACCOUNTABILITY
The CWG-Stewardship’s proposal has dependencies on and is expressly conditioned upon the CCWG-Accountability process. Specifically, the proposal requires ICANN accountability in the following respects:
The CCWG-Accountability is expected to deliver its own draft proposal for a similarly truncated public comment period later this month. However, the CCWG has penciled in a possible second comment period on the Accountability proposal that could begin around July 1 — while the CWG has no plans for a second comment period on the Stewardship proposal even though the draft that was just published has large holes in it.
The CWG’s current plan going forward is to analyze the comments following the close of the input period and then deliver a final draft for review, consideration and approval by ICANN Supporting Organizations and Advisory Committees around June 8th, with submission to the IANA Coordination Group (ICG) scheduled for just seventeen days later on June 25th.
At some future point the final package assembled by the ICG will have to be reconciled and combined with the final Accountability proposal and delivered to the ICANN Board for review and approval, an event currently projected to occur around August 30th. After that, implementation of those accountability measures required to be in place prior to the IANA transition would start, and the NTIA would review the full package and decide whether it effectively met the principles contained in its March 2014 announcement of the IANA transition.
Congressional appropriations language remains in effect that prohibits the NTIA from facilitating the transition prior to September 30th and requires that it provide Congress with 45 days advance notice of any intent to transfer oversight of the IANA root zone functions.
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.
In a rapid follow-up to the unprecedented joint letter sent on August 26th by all members of the ICANN community questioning the proposed Accountability Process imposed by ICANN staff, three of the groups that signed that letter have now submitted a formal Reconsideration Request (RR) to the ICANN Board. The August 29th RR – submitted jointly by the Business Constituency (of which ICA is a member), Registry Stakeholders Group, and Non-Commercial Stakeholders group – requests that ICANN “confer with the community as soon as possible to address these concerns and amend its plan in such a way that the community input is taken into account as the plan goes forward. Specifically, ICANN should make modifications and clarifications to its plan to reflect the widely shared concerns of the community that can reasonably be implemented.”
The RR process is one of three currently available accountability measures available to ICANN stakeholders. The others are an Independent Review Panel (IRP) and the filing of a complaint with the Ombudsman. ICANN’s Board has contended that the findings of an IRP are merely advisory and non-binding, and the Ombudsman has investigatory powers but no authority to make or change policy, administrative or Board decisions. The RR is thus the only means available for requesting that the Board intervene against arbitrary staff action that materially injures the ICANN community.
One of the ideas that have been floated for the evaluation of enhanced accountability measures recommended by the final Accountability Process is subjecting them to a hypothetical “stress test” to determine their likely efficacy. The manner in which ICANN’s Board handles this RR will constitute a real world stress test of the RR’s effectiveness as an accountability mechanism, and will inform the subsequent debate about necessary enhancements.
The RR contains multiple allegations of an extremely serious nature that add up to a searing critique of staff actions. Here is a sampling of the key charges, quoting directly from the RR:
The business sector and civil society have been coalescing around core Principles for the IANA transition and accompanying enhancements of ICANN accountability. The U.S. Congress will be returning from recess next week and will undoubtedly be hearing from Internet-related businesses and public interest organizations in regard to the staff-imposed Accountability Process, which seems designed the type of sweeping reforms contained in those Principles. This may result in sharp questioning of the NTIA – which must sign off on any proposed transition plan, and has publicly stated that it must be accompanied by acceptable accountability measures – about why ICANN has violated its own multistakeholder process and commitment to transparency. Additional Congressional reaction is also possible. As ICANN’s own Governmental Advisory Committee signed the joint letter we expect that many other governments have and will continue to receive similar input.
Meanwhile, ICANN’s CEO and Board Chairman sent an August 28th response to the signers of the August 26th letter. While the tone of their letter is civil it does not commit to any reopening of or revisions to the staff-imposed Process. Indeed, it appears to reiterate that the disgruntled parties should engage with the process as is:
We look forward to receiving your list of clarifying questions and concerns and we will respond in kind. As we have since this process began last spring, we appreciate all of the community comments received to date and encourage broad participation in the Cross Community Group – the key forum for generating the substantive issues this accountability process will address.
The process as outlined and complemented with the information in the FAQs enables the substantive dialogues to begin soon, to remain interrelated with the IANA Functions Stewardship Transition process well underway. (Emphasis added)
ICANN has also indicated its dedication to “full speed ahead” adoption and implementation of the staff-imposed Process through the August 28th publication of a “Call for Candidates: Seeking Advisors to the ICANN Accountability & Governance Coordination Group”. The notice sets a very near-term deadline of September 10th for the submission of nominations so that the Public Experts Group (PEG) – of which NTIA head Larry Strickling is one of four members – can complete the final selection of ”advisors” before the final 2014 ICANN meeting scheduled for October 12th-16th in Los Angeles. As noted above, one of the allegations in the RR is that “the community has no say in the appointment of the Public Experts Group (“PEG”) or the seven outside “expert” advisors to be appointed by the PEG. Yet, the seven advisors could steer consensus and outcome”.
Further questions arise regarding the staff decree that the Advisors are supposed to “bring an external, independent voice to this process to assure that best practices are brought in from outside of the ICANN community”. An accompanying FAQ sheds no light on what it means to be from “outside” the ICANN community, but makes clear that the “Coordination Group should make recommendations based on consensus taking into account advice of the advisors” and that the “advisors are not limited to engaging with the Coordination Group”. So it appears that these Advisors are supposed to have considerable impact on the final report and recommendations, and will have wide latitude to engage with parties outside the Coordination group – including governments and the media – but are to have little or no actual real world experience with ICANN. Many would rightfully ask why individuals who are part of the ICANN community, understand its operations and internal dynamics, and have expertise in relevant areas should be automatically deemed ineligible to act in this advisory capacity? This staff decision seems designed to ensure that the selected Advisors operate in the world of theory rather than actual ICANN practice.
The final sign that ICANN leadership may be circling the wagons and doubling down on the staff plan is its August 29th announcement of a September 2nd “Enhancing ICANN Accountability and Governance Town Hall Meeting” taking place at the IGF meeting in Istanbul. It explains, “The Town Hall Meeting will provide an opportunity for an open dialogue to address and clarify any remaining questions about the Enhancing ICANN Accountability and Governance Process.” (Emphasis added)
It is worth recalling that ICANN’s rationale for separating the IANA transition from the enhanced accountability processes was that the first involved the global stakeholder community while the second was an internal ICANN matter and therefore should be discussed and determined solely within the ICANN community. That rationale was questionable given that ICANN is wide open to participation by anyone. Some suspected that it was adopted in anticipation of trying to push the transition through before any significant accountability improvements were decided, much less implemented. But it is the official rationale put out there by ICANN.
Now that every group within the ICANN community has signed a joint letter expressing concerns about the substance of the fait accompli Accountability Process promulgated by staff as a on August 14th — with that community letter promising additional detailed questions within seven days – that action has become the focus of intense disagreement between ICANN the corporation and its community. This dispute should be resolved internally.
While an ICANN session discussing and taking questions about the proposed Process during the IGF meeting seems unobjectionable, the notion that “all remaining questions” can be answered in a 90-minute session in Istanbul is preposterous. They cannot. There are too many questions to be answered in an environment that may be as much PR event as substantive dialogue. And this is a session at which many members of the ICANN community will not be present, while many in the audience will have little or no understanding of ICANN’s procedures and Bylaws and the events leading up to this impasse.
There can be little doubt that the attempt of ICANN staff to impose an Accountability Process over the objections of and without sufficient input from the ICANN community has introduced tremendous unnecessary stress into the entire relationship between the corporation and its community. How the Board handles this RR will determine whether that stress is relieved in a constructive manner or is further exacerbated. It will also be highly instructive on the questions of whether the present RR process provides any real accountability – and, if not, what should be developed to replace it.
The text of the RR follows:
Reconsideration Request Form
1. Requester Information
Name: Steve DelBianco, Business Constituency vice chair for policy coordination, on behalf of:
The Business Constituency;
The Registries Stakeholder Group; and
The Non-Commercial Stakeholders Group (NCSG)
Address: 1920 Virginia Ave, McLean, VA 22101 USA
Phone Number (optional): +1.703.615.6206
2. Request for Reconsideration of (check one only):
X Staff action/inaction
3. Description of specific action you are seeking to have reconsidered.
We ask the Board Governance Committee (BGC) to reconsider the ICANN staff’s imposition of its
“Accountability Plan”, the final version of which was posted to ICANN’s website on 22-Aug- 2014,
which is also the date that the staff Rationale for the plan was initially posted to the public.
Among others, the community groups represented here had called for a community-developed
Accountability Plan, and yet were not allowed to participate in the drafting of staff’s plan. At the
London ICANN #50 meeting in June, staff promised the community that the plan would be
community-developed, transparent, open, and bottom-up in its formulation. The plan imposed on 22-
Au-2014 had none of those promised attributes.
ICANN staff also failed to take into account the statement of the 4 GNSO Stakeholder Groups at the
London #50 meeting noting ICANN’s conflict of interest and calling for an independent accountability
mechanism to be developed. Indeed staff has not responded in any way to the statement of the 4
GNSO Stakeholders Groups in the London Public Forum in June. In summary:
1. The BCG should reconsider the staff decision to impose a plan of this significance without
allowing a public comment period on the staff-developed plan.
2. The BCG should reconsider the staff decision to impose a plan that failed to address widely
shared community concerns as expressed in numerous public comments, discussions at
ICANN #50, and stated community reactions to the infographic.
4. Date of action/inaction:
The final version of staff’s Accountability Plan was posted to ICANN’s website on 22-Aug-2014,
which is also the date that the staff rationale for the plan was initially posted to the public.
ICANN provided an “Infographic” foretelling certain aspects of its plan to select members of the
community on 14-Aug-2014. Community leaders told ICANN staff at that time that their groups were
not aligned with staff’s plan, and staff responded and stated it was “fixing” its plan. The community
waited for the so-called “fixed” plan, which was posted as Final on 22-Aug-2014, and which did not
address the stated community concerns in any meaningful way. The rationale for this plan was not
provided by staff until the plan was final on 22-August, at which point its implementation was already
Staff did not allow a public comment period for any community discussion, shaping, or even support
to occur for its Accountability Plan prior to its adoption and implementation. Staff did not address the
many concerns that had been expressed about ICANN’s conflict of interest in controlling the process
to hold itself “accountable”. Staff did not clarify the roles in its accountability plan to ensure that
stakeholders are the decision makers in matters they are subject to.
5. On what date did you became aware of the action or that action would not be taken?
On 22-Aug-2014, when staff finally posted the plan and its rationale to its website, and it did not
address community concerns as promised, and its implementation had begun, we became aware that
the plan staff intended to implement would not meet the community’s needs and redress measures
would be required.
6. Describe how you believe you are materially affected by the action or inaction:
We have been materially and negatively affected by the staff’s decision to proceed with their proposed
plan finalized in the 22-Aug-2014 ICANN announcement on Enhancing Accountability: Process and
The staff-proposed plan did not properly take into account community concerns and did not provide a
public comment period whereby the community could provide reaction to the staff plan. By taking this
action, we have been materially harmed, as our questions, concerns, and ideas have not been
adequately considered in the required multi-stakeholder process.
Further, the community has no say in the appointment of the Public Experts Group (“PEG”) or the
seven outside “expert” advisors to be appointed by the PEG. Yet, the seven advisors could steer
consensus and outcome that will have a direct impact on the community, since the Coordination Group
is directed to make recommendations based upon consensus, taking into account the advice of the
advisors. Worse still, the staff-imposed plan would allow the ICANN Board to reject or selectively
accept recommendations of the Coordination Group, again bypassing the multi-stakeholder process.
The staff-imposed plan is a top-down approach that calls into question the fairness of enhancing
accountability process and the legitimacy of its decisions. It also creates a disturbing precedent that
could embolden future actions by staff or the ICANN Board to circumvent and ignore the bottom-up,
7. Describe how others may be adversely affected by the action or inaction, if you believe that
this is a concern.
In addition to an adverse effect upon us, the staff-imposed plan has an adverse effect upon other
constituencies and upon other members of the community. This plan, imposed on the community
without transparency and without the opportunity for public comment, creates inconsistency,
disregards proper ICANN procedure, injects unfairness into the process, and defeats the purpose of the
entire accountability examination. All members of the ICANN community and users of the Internet
have a stake in the outcome of the enhancing accountability process and may be harmed if the process
does not take into account their views and is the result of a staff-imposed plan rather than a
8. Detail of Staff Action – Required Information
The staff development and imposition of its accountability plan as described above failed to uphold
ICANN’s stated core values, mission, and promises that the accountability plan would be communitydriven
and based on the public interest as expressed through a bottom-up process.
Specifically, the staff action is in violation of several core values in ICANN’s bylaws, whereby
ICANN promises it will behave in an open, transparent, and bottom-up fashion in the formulation of
the organization’s policies and operations.
In Article I, Section 2 of its Bylaws, ICANN promises to engage with the community in the
development of policy in a bottom-up and open manner at all levels. And in the Section 3 of its
Bylaws, ICANN promises to operate in a transparent and fair manner. Through this staff action,
ICANN has failed in its commitment to the Internet community that it will operate in an open,
transparent, fair, and bottom-up fashion in the formulation of crucial policy.
ICANN Bylaws – Article I, Section 2 – Core Values:
4. Seeking and supporting broad, informed participation reflecting the functional,
geographic, and cultural diversity of the Internet at all levels of policy development
ICANN neither sought nor supported participation in the development of this plan, and specifically
excluded the community from the drafting and decision-making opportunities behind the staff plan.
7. Employing open and transparent policy development mechanisms that (i) promote
well-informed decisions based on expert advice, and (ii) ensure that those entities
most affected can assist in the policy development process.
The formulation of staff’s plan went on behind closed doors and excluded the opportunity for the
community to influence the plan. The community was not provided with the rationale for the staff plan
until after the plan had been posted as final and its implementation had begun. At several GNSO
Council meetings since June and also during several “community leaders” calls, staff were asked to
engage with the community on the development of the plan and those requests were ignored.
8. Making decisions by applying documented policies neutrally and objectively, with
integrity and fairness.
The decision to impose this plan, to which so many in the community were openly objecting, showed a
lack of neutrality, integrity, objectivity, and fairness on the part of staff. Staff failed to follow any
documented policy and created its own plan without addressing the concerns about its conflict of
interest in the matter.
9. Acting with a speed that is responsive to the needs of the Internet while, as part of the
decision-making process, obtaining informed input from those entities most affected.
Staff failed to include the input of those who are most affected by staff’s accountability plan: the
community members who participate at ICANN in hopes of getting a fair opportunity to influence
policy in a democratic, open, transparent process. Staff kept all decision-making on the development
of the accountability plan behind closed doors and entirely within their control, beginning after the
initial comment period ended in June until the plan was imposed on the community in August.
10. Remaining accountable to the Internet community through mechanisms that
enhance ICANN ‘s effectiveness.
Staff failed to integrate the input obtained from the initial public comment period in the formulation of
its plan. Then staff did not provide any opportunity for public comment on its plan once it was finally
published. ICANN has failed to be accountable to the Internet community through mechanisms such
as the public comment period by failing to consider those comments initially and by failing to permit a
comment period on the plan it developed internally. Providing an advance “infographic” to a small
handful of insiders and asking for their alignment does not meet an acceptable standard for public
ICANN Bylaws – Article III, Section 1 – Transparency
ICANN and its constituent bodies shall operate to the maximum extent feasible in an
open and transparent manner and consistent with procedures designed to ensure
Staff failed to operate in an open, transparent or fair manner. Decisions and drafting were all done
internally by staff with no opportunity for the public to shape the staff plan in any meaningful way.
Staff’s rational was not provided until 22 August, after the plan was already considered final by staff
and its implementation was underway.
9. What are you asking ICANN to do now?
ICANN should confer with the community as soon as possible to address these concerns and amend its
plan in such a way that the community input is taken into account as the plan goes forward.
Specifically, ICANN should make modifications and clarifications to its plan to reflect the widely
shared concerns of the community that can reasonably be implemented.
10. Please state specifically the grounds under which you have the standing and the right to
assert this Request for Reconsideration, and the grounds or justifications that support your
The views, concerns, needs, and ideas of the community ICANN was established to serve were not
adequately considered in the formulation of the staff plan. Nor were ICANN’s Bylaws and promises
to operate in an open, transparent, and bottom-up manner followed in this process. The communities
represented here participate in the process with the expectation that the process will be fair, open,
transparent, and bottom-up in its operation. Many of our members spent significant time drafting and
submitting comments that were not considered by staff and the needs and objectives of our entire
stakeholder communities are not reflected in the plan developed by staff.
We legitimately represent the bottom-up process with our members devoting significant energy to
ICANN, and that gives us standing to assert this request for reconsideration.
11. Are you bringing this Reconsideration Request on behalf of multiple persons or entities?
X Yes: Business Constituency, Registries Stakeholder Group, and Non-Commercial Stakeholders
11a. If yes, Is the causal connection between the circumstances of the Reconsideration
Request and the harm the same for all of the complaining parties? Explain.
Yes, our members are participants in the GNSO at ICANN and each of our groups signed on to the
London #50 Statement (below) of the GNSO regarding the ICANN accountability crisis.
Do you have any documents you want to provide to ICANN?
The ICANN #50 Statement of the GNSO 4 Stakeholder Groups on ICANN Accountability (26 June
Letter from ICANN communities on ICANN Accountability Plan:
(28 August 2014)
Terms and Conditions for Submission of Reconsideration Requests
The Board Governance Committee has the ability to consolidate the consideration of Reconsideration
Requests if the issues stated within are sufficiently similar.
The Board Governance Committee may dismiss Reconsideration Requests that are querulous or
Hearings are not required in the Reconsideration Process, however Requestors may request a hearing.
The BGC retains the absolute discretion to determine whether a hearing is appropriate, and to call
people before it for a hearing.
The BGC may take a decision on reconsideration of requests relating to staff action/inaction without
reference to the full ICANN Board. Whether recommendations will issue to the ICANN Board is
within the discretion of the BGC.
The ICANN Board of Director’s decision on the BGC’s reconsideration recommendation is final and
not subject to a reconsideration request.
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/ .
On April 24th the NETmundial “Global Multistakeholder Meeting on the Future of Internet Governance” concluded with the issuance of an eight-page statement. This non-binding document is hardly the “Magna Carta for the Internet” called for in an opening statement delivered by Tim Berners Lee, but it does set the stage for the other two major 2014 events that will affect the course of Internet Governance (IG) – the IGF meeting in Istanbul, Turkey and the ITU meeting in Busan, Korea.
Before turning to the final outcome document a separate and very important development took place on the meeting’s final day. That was ICANN CEO Fadi Chehade’s statement at the IANA transition session that the transition plan and the broader issue of improved ICANN accountability are “very interrelated” and that ICANN will publish a proposal for a consultation on improved accountability this week — adding that the two processes will develop “hopefully together on the same time line”.
While a welcome clarification, this statement is inevitable recognition that the need for periodic renewal of the IANA functions contract operated as a powerful tool to make ICANN adhere to the Affirmation of Commitments (AOC) signed with the US but providing global benefits in regard to ICANN accountability and transparency. Many parties both within and outside the ICANN community will never sign off on an IANA transition proposal unless it is accompanied by a robust and reliable ICANN accountability mechanism. Further, it is likely the IANA transition process proposed by ICANN earlier this month will encounter some stiff pushback from many members of its community because it proposes structural details (e.g., Steering Committee guidance and composition) that should be left to the community to determine — and its proposed definition of what is and is not within scope for the discussion is far too narrow and tries to predetermine an outcome in which ICANN receives permanent possession of those IANA functions, with no other options permitted for discussion.
Turing to the final NETmundial document:
In regard to the more important Roadmap for Future Evolution for IG, which will have bearing on the IGF and ITU events as well as other developments down the road:
How do we ensure that resources are mobilized and maintained for a viable Internet Governance mechanism? The question is not just at the global level, but also at regional and national levels. Whose resources are we going to commit? My leaning is that the Internet should be able to provide resources for its own governance. Maybe, part of the domain name fees could be reinvested here. (Emphasis added)
While ICANN may have to expend some resources to participate in relevant meetings and thereby contribute to the Internet governance ecosystem, the fees it collects from domain registrants via registrar and registry Internet intermediaries should be used solely to fund its own role as technical manager of the DNS and for related policy matters. Having ICANN go beyond that narrow remit and redistribute registrant fees to global, regional, or national IG activities would convert it into a multinational tax-and-spend organization. That is not only inappropriate but would be accompanied by a large potential for corrupting digital cronyism. This is a dangerous idea that bears continued close scrutiny.
The official U.S. statement issued upon NETmundial’s conclusion declared that “hundreds of stakeholders from around the world convened to discuss and agree upon a shared vision for the multistakeholder model of Internet governance that seeks to further develop an increasingly open, transparent, inclusive, and responsive system” and that its Multistakeholder Statement “endorsed the transition of the U.S. Government’s stewardship role of IANA functions to the global multistakeholder community, consistent with our stated principles”. The U.S. surely breathed a sigh of relief that the meeting did not blow up in acrimony — and that the final document makes no direct reference to the NSA data collection program, stating more generally that, “Mass and arbitrary surveillance undermines trust in the Internet and trust in the Internet governance ecosystem. Collection and processing of personal data by state and non-state actors should be conducted in accordance with international human rights law.”
The U.S. statement also recognizes that NETmundial was just the opening event in this year’s IG passion play, stating, “NETmundial marks one of many critical global discussions planned for the multistakeholder community this year. The U.S. Government supports these discussions and looks forward to working collaboratively with the global community to strengthen the Internet governance structure, enabling broad participation from governments, businesses, civil society, technology experts and academia.” The fact that the U.S. delegation was led by White House Cybersecurity Coordinator Michael Daniel just underlines that IG is now seen as a top tier, high-stakes issue by the Obama Administration.
While NETmundial made incremental progress, it failed in one central aim. ICANN claimed that Brazil President Dilma Rousseff had been converted to a multistakeholder model advocate, and that holding this meeting in Brazil could bring the other BRIC nations along. But President Rousseff adopted a half-pregnant position in Sao Paulo, making the politically expedient declaration that there is “no opposition” between the multilateral and the multistakeholder approaches. And Russia, India, and China, along with other developing world nations, all strongly reiterated their support for a UN-led, government centric approach to Internet governance. Those nations collectively comprise about half the planet’s population and the great majority of the next billion Internet users. And a more decisional IGF, along with the UN-affiliated ITU, may provide far more compatible venues for their goals than a one-off NETmundial meeting.
So, while a bullet has been dodged, the real drama lies ahead.