Government Blesses ICANN Transition: Remaining Concerns and New Questions

The Obama administration first announced its intent to end the historical U.S. contractual relationship with the Internet Corporation for Assigned Names and Numbers (ICANN) in March 2014 and transition its stewardship of key Internet domain name functions to the global multi-stakeholder community.

The transition was originally supposed to occur at the end of Sept. 2015, but ironing out the details of a proposal that satisfied the bulk of the multi-stakeholder community and the ICANN board proved to be more difficult than anticipated.

Over the past nine months, National Telecommunications and Information Administration (NTIA) has been anxiously urging ICANN and the multi-stakeholder community to complete their work so that the transition would happen before the upcoming election. Therefore, to no one’s surprise, NTIA announced this morning that:

the IANA Stewardship Transition Proposal meets NTIA’s established criteria [and] The U.S. government agencies participating in the NTIA-led DNS Interagency Working Group, as well as senior officials participating in a regular interagency process for review of global Internet matters, all support NTIA’s conclusion that the IANA Stewardship Transition proposal meets our criteria.

Considering the political pressures to get this done quickly, this conclusion was never in doubt. In fact, the proposal does meet NTIA criteria in a number of respects. As we noted following ICANN’s formal approval in March, the transition proposal includes a number of positive accountability improvements.

However, NTIA’s assertion that “The accountability provisions maintain the advisory role of governments within ICANN, and through bylaw changes, ensure that a government or a group of governments cannot capture or exercise undue influence over the DNS” is at best a half truth. After the transition, the threshold for the board to reject government advice will be raised and governments will, for the first time, have the power to vote on bylaw changes, dismissal of the board, and ICANN’s budget. In short, governments will have more power and influence in ICANN than is the case today.

But even if you find the expansion of government authority in ICANN acceptable, as ICANN and NTIA evidently do, the fact that the new ICANN will be untested should give us all pause.

This is why we support a soft extension of the U.S. contract with ICANN as proposed by Sens. Marco Rubio, R-Fla., Ron Johnson, R-Wis., Roy Blunt, R-Mo., Dean Heller, R-Nev., and Dan Sullivan, R-Ark. This would allow implementation of the new ICANN bylaws, but have a mechanism for the NTIA to reassert its traditional role if things do not proceed as the ICANN community thinks that it will. We reject NTIA’s assertion that:

These accountability enhancements act as a safeguard and tools of last resort. As such, there is no expectation that the community will ever need to exercise these powers in the next several years; indeed, the hope is that they are never exercised. The notion of “testing” these would require significant failure on behalf of ICANN that is unlikely to happen in the near future, if at all.

While there is no guarantee of a significant failure over the next two years – and we hope one does not occur—there will be opportunities for the multi-stakeholder community to test out the new accountability mechanisms through already scheduled actions. These include approving or opposing bylaw changes related to further ICANN reforms envisioned under “Work Stream 2” and working out the kinks of more mundane processes like consulting with the supporting organizations and advisory committees during the budget development process and providing notifications to the Empowered Community.

Beyond the transition proposal, however, NTIA’s announcement has raised two additional questions that should receive close scrutiny from Congress.

The first is NTIA’s strange complacence over .mil and .gov. According to NTIA,

[P]er the policies, procedures, and practices in place, .mil and .gov cannot be transferred without explicit agreement first from the current administrators of those domains – namely, the U.S. government. However to address concerns that have been raised, NTIA and ICANN have formally reaffirmed that the U.S. government is the administrator of .mil and .gov and that any changes made to .mil or .gov can only be made with the express approval of the U.S. government.

This reaffirmation was made through an exchange of letters. These letters are non-binding and lack the certainty of a legal contract. ICANN and NTIA are not pen pals, they are business partners. Business partners formalize serious matters with a contract.

And there is no doubt that this is a serious matter. In its letter to ICANN, NTIA acknowledges that requests for reconsideration of the .mil, .gov, .edu, and .us domains is possible and that ICANN could re-delegate them. Further, NTIA stated it needed to be notified if a Separation Cross-Community Working Group that could lead to a recommendation that ICANN separate the naming-related Internet Assigned Numbers Authority (IANA) functions from ICANN is formed because:

It is critical to the stable and secure operation of the U.S. Government Administered top level domains that any potential successor operator commit in writing that it will honor and maintain ICANN’s commitments with respect to these U.S. Government-administered TLDs.

Why wouldn’t the U.S. want maximum legal certainty over something that is “critical to the stable and secure operation of the U.S. government administered top level domains”? The less formal arrangement over U.S. administered TLDs was acceptable as long as the U.S. contractual relationship remained in place.

Now that the NTIA has announced its intention to approve the transition, this contractual leverage will no longer be in place and collegial assurances are no longer sufficient. As argued by Rep. Mike Kelly, R-Pa., Congress should oppose any transition until NTIA certifies that it has entered into a contract with ICANN giving the U.S. sole ownership and control of .mil and .gov in perpetuity.

The second is whether NTIA violated U.S. law. Sens. Ted Cruz, R-Texas, Mike Lee, R-Utah., and James Lankford, R-Okla., and Representative Sean Duffy, R-Wis., assert that the NTIA “violated federal law by undertaking preparations to give the Internet away to foreign governments” by defying language in the 2016 Omnibus that 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 2016, 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.

Notwithstanding any other law, subsection (a) 4 of this section shall not apply in fiscal year 2017.

NTIA has been expending significant resources over the past weeks to evaluate the transition proposal and issue its report which weighs in at a hefty 172 pages including annexes. It also has entered into a sole source contract with Harvard University’s Berkman Center to conduct an “independent review and assessment of a non-profit corporate governance structure designed for a multistakeholder setting.”

These expenditures are distinctly different than attending ICANN meetings or reporting to Congress on the status of the transition proposal. Instead, they are directly intended to facilitate relinquishing the responsibility of NTIA with respect to the domain name system the IANA functions.

NTIA expenditures on these activities are in contravention of the spirit and letter of the appropriations language. In addition, NTIA is apparently contemplating an additional violation in that the decision to not extend the current contract has to be made in August, which is within the 2016 fiscal year.

There can be legitimate disagreement over the merits of the transition proposal, but as maintained by Americans for Limited Government, Congress should not lightly accept willful defiance of its legislated funding prohibitions grounded in congressional powers detailed in Article I of the U.S. Constitution.