In the previous blog post, we have looked at the overall process related to the transition of the US Government (USG) stewardship role over the IANA functions, providing an overview of the changes that will accompany the transition, and outlining the steps taken over the past several months in preparation for these changes.
As previously explained, the contract between ICANN and USG on the performance of the IANA functions is set to expire on 30 September. With this date rapidly approaching, the debates on whether the transition should or should not happen are becoming more and more intense. Supporters and opposers of the transition use a wide range of arguments to advocate for their positions. Here are some of them.
The transition as a tool to increase ‘the power of foreign governments’ within ICANN. During the US Congress hearing held earlier this week, it was argued that the transition would decrease the power of the USG within ICANN, and would increase the power of ‘foreign governments’. While NTIA admitted that, post transition, USG would be on an equal footing with other governments members of ICANN’s Governmental Advisory Committee (GAC), it also explained that any GAC advice to which the ICANN Board would be required to give special consideration has to be based on consensus. This means that there will be no such advice going out from the GAC that the USG does not agree with. With regard to an overall risk of governments capturing ICANN, it was further explained that, in the context of the new ICANN bylaws (to become effective once the transition takes place), there is no such possibility. Governments cannot sit on the ICANN Board of Directors, and, in the empowered community (explained in the previous post), their power is similar to that of other ICANN bodies.
The transition as a risk to Internet freedom. One common argument against the transition is that, should the USG relinquish its stewardship role over the IANA functions, this would open the door for authoritarian governments (China, Russia, and Iran are most often mentioned) to expand their content control and censorship policies at a global level. Sen. Cruz argues, for example, that the USG-ICANN contract is a tool that the USG can use to ensure protection of freedom of speech on the Internet. Once this contract expires, the protection of the Internet freedom would be at risk, as ICANN could be captured by authoritarian governments who would then use the organisation as a mechanism to expand their policies. Critics of this view underline that the USG-ICANN contract is too limited in scope to be a tool for protecting Internet freedom. Freedom of expression is related to Internet content and second level domains. NTIA has no involvement whatsoever in such issues, and ICANN is not a regulator of content. Moreover, the contract simply empowers ICANN to perform the management of the key technical Internet resources, and the USG role is this process is simply a clerical one. From a technical point of view, the transition would only remove NTIA as an intermediary in the process of making chances to the DNS root zone, thus actually simplifying the process.
Delaying or preventing the transition would send a wrong signal to the global community. Supporters of the transition emphasise the fact that the privatisation of the IANA functions is a process the USG committed to as early as 1997. The current transition proposal has been elaborated by the larger community, and it has a broad support. If the government now backs down on its commitment, it will lose credibility. In this context, the USG support for the multistakeholder model of Internet governance would be seriously questioned.
Delaying or preventing the transition as a risk to the multistakeholder model of Internet governance. The current role of the USG as a steward of the IANA functions has been used as an argument by many governments to advocate for the Internet to be governed in an intergovernmental set-up (be it the United Nations, the International Telecommunication Union, or a new intergovernmental mechanism all together). If the USG does not allow the transition to happen, this would only give such governments even more arguments to push for an intergovernmental model of Internet governance. Moreover, governments that over the past few years have been convinced about the value of the multistakeholder model might reconsider their positions if they see the USG as not delivering on its commitments.
Preventing the transition could lead to a fragmentation of the Internet. One interesting scenario brought forward by supporters of the transition says that, should the transition fail to happen, this might serve as an incentive for parts of the community to move towards a system that would compete with the current DNS managed by ICANN. Although alternative roots already exist, they are not so much used nowadays, but this might change if the community is not satisfied with how the current model works, especially if the transition fails to happen.
The transition should happen gradually. There are also views according to which the transition should happen, but as part of a gradual process, which would allow the new model to be tested. In such a scenario, the clerical role of the USG in approving changes to the DNS root zone can be removed, but the government should retain its ability to take the IANA functions away from ICANN, should it turn out that the new ICANN accountability mechanisms do not work as planned. Supporters of this idea say that the accountability mechanisms incorporated in the new ICANN bylaws need to be tested in practice, and that a transitory period would bring no harm to the overall transition process. Opponents of this scenario argue, however, that the accountability mechanisms involve extraordinary powers entrusted to the community (such as the removal of the ICANN Board), and that it may take years until the circumstances happen that would require the exercise of such powers.
ICANN’s jurisdiction and whether the organisation will be able, at a later stage, to move outside the US, despite current bylaw provisions, is another matter of concern. During the Congress hearing, ICANN explained that the entire organisation is constructed around California law, and changing this would be a very hard thing to do. It was even said that it might be easier to ‘start a new ICANN elsewhere’ than to move ICANN outside the US jurisdiction.
USG property implications of the transition. In September 2015, members of the US Congress asked the US Government Accountability Office (GAO) to issue a legal opinion on whether the transition would result in the transfer of any kind of US government property without the legal authorisation by Congress, as required by the US Constitution. GAO issued its opinion earlier this month and concluded that ‘it is unlikely that either the domain name system or the authoritative root zone file […] is US government property’. It also found that ‘NTIA has the requisite authority to terminate the agreement [with ICANN], and, thus, to dispose of this Government property interest’. This opinion is seen by some as only adding another layer of uncertainty to the IANA transition process, and, as such, as another reason for the transition not to take place on 1 October.
NTIA’s possible infringement of legal provisions passed by the Congress. In 2015, the US Congress passed the Consolidated Appropriations Act for the 2016 fiscal year, which contains a provision prohibiting NTIA from using appropriated funds to relinquish its responsibilities regarding the IANA functions, until 30 September 2016. There are views that NTIA has infringed this provision through various activities performed in preparation of the transition (through, for example, use of funds and civil servants’ time to evaluate the transition proposal). NTIA, however, argues that this is an extensive interpretation of the legal provision; in its view, the Appropriations Act only prohibits the government from actually relinquishing its responsibilities, and it does not refer to the preparatory activities for the transition.
It is not so easy to say at this point. On 14 August, NTIA informed ICANN that, barring any significant impediment, it intends to allow the IANA functions contract to expire as of 1 October. On 31 August, however, NTIA sent ICANN a preliminary notice of its intent to extent the IANA functions contract for another year. While underlying the fact that the government still intends to allow the contract to expire as of 1 October, the notice is aimed to preserve the government’s right to extend the contract, should any significant impediment appear by that date. ICANN has further clarified that the preliminary notice does not commit the government to an extension of the IANA functions contract, and has explained that a ‘significant impediment’ might be, for example, ‘a legal or legislative obstacle that would prevent the expiration of the […] contract’.
Could such a legislative obstacle appear in the next two weeks? Despite the broad support for the transition, this option should not be completely ruled out. One possibility would be for the US Congress to extend the current prohibition for NTIA to use appropriated funds to relinquish its stewardship role over the DNS. This is something that at least few members of the Congress are likely to be working on right now...