New DOTCOM Act Addresses Short-Term Concerns About the ICANN Transition

On June 17, the House Energy and Commerce Committee approved an amended version of H.R. 805, the Domain Openness Through Continued Oversight Matters Act of 2015 (DOTCOM Act of 2015). The bill is expected to be approved by the House in the coming weeks. Senate Committee on Commerce, Science, and Transportation Chairman John Thune (R–SD) introduced an identical bill with bipartisan support that is similarly expected to receive Senate approval.

Thus, Congress appears to have settled on a broadly supported strategy for dealing with the Administration’s announcement last year that it would be ending the U.S. government’s contractual relationship with the Internet Corporation for Assigned Names and Numbers (ICANN) to manage the Internet Assigned Numbers Authority. But is it a good strategy?

The short answer is that it is much better than the status quo. If enacted, the DOTCOM Act would:

• Prohibit the Administration from ending its current role for 30 legislative days after submitting a report to Congress detailing the specific transition proposal developed by the multi-stakeholder communities and convened by ICANN along with a certification that the proposal meets the criteria announced by the Administration in its original announcement. This would prevent the transition from going into effect without Congress having an opportunity to review and, if it is flawed, stop it.
• Require the Administration to certify that ICANN has adopted the bylaw changes recommended by the multi-stakeholder community through its stewardship transition and accountability working groups before the transition occurs (e., ICANN has to follow through in reality, not just promise to do it).
• Make it clear that the U.S. supports the leadership of the multi-stakeholder community in driving this process by endorsing the results of the community working groups. This is an important public relations signal, but also applies U.S. leverage to the benefit of the multi-stakeholder community in its efforts to reform ICANN to make it more accountable.

Current law passed in Section 540 of the 2015 “Consolidated and Further Continuing Appropriations Act” states:

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.

The provision expires at the end of the fiscal year, but could be renewed.

Although the funding prohibition has received much attention, it is limited. It signals congressional discontent but fails to express what Congress wants. More critically, because it does not cost money to allow the contract to lapse, the language likely would not actually prevent the transition from occurring if the Administration wished to proceed with a flawed proposal that falls short of its criteria or does not comply with the demands of the multi-stakeholder community. Equally important, the funding prohibition restricts the Administration’s engagement in the process of developing new accountability measures, precisely at the time when we want it to be most engaged.

By contrast, the DOTCOM Act broadly outlines what Congress wants to see from the proposal and makes sure nothing happens without congressional oversight and opportunity to act prior to the culmination of the transition.

Admittedly, DOTCOM is not a panacea. As noted by some conservative commentators, it does not provide detailed instruction on various aspects of the transition proposal, such as limiting the mission and scope of ICANN’s activities, outlining the dispute resolution process, or placing checks on ICANN’s budget. However, these issues are at the center of the multi-stakeholder community working group proposals and are being addressed there. If they are not fully addressed or if the changes recommended by the multi-stakeholder community are ignored, Congress will have an opportunity to act before the transition takes effect.

One critical issue, however, needs to be resolved separately: ensuring U.S. control and ownership of .mil and .gov. The multi-stakeholder community has little reason to address this issue, which principally concerns U.S. cybersecurity. The Administration and Congress should make every effort to resolve this concern quickly through separate negotiations with ICANN.

Congress should also make clear that its certification that required changes to ICANN’s bylaws be adopted means more than just incorporation into the bylaws. There is a big gulf between adopting a bylaw change and actually implementing it. Congress would be doing the multi-stakeholder community a disservice if it withdrew U.S. leverage short of the finish line.

In short, the DOTCOM Act is a positive step that addresses critical short-term concerns, but Congress should remain engaged and prepared to supplement it if necessary.