[Senate Hearing 114-546]
[From the U.S. Government Publishing Office]
S. Hrg. 114-546
EXAMINING THE MULTISTAKEHOLDER PLAN
FOR TRANSITIONING THE INTERNET ASSIGNED NUMBER AUTHORITY
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
MAY 24, 2016
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas EDWARD MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Rebecca Seidel, General Counsel
Jason Van Beek, Deputy General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel and Policy Director
C O N T E N T S
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Page
Hearing held on May 24, 2016..................................... 1
Statement of Senator Thune....................................... 1
Statement of Senator Schatz...................................... 2
Statement of Senator Fischer..................................... 63
Statement of Senator Ayotte...................................... 66
Statement of Senator Gardner..................................... 67
Statement of Senator Daines...................................... 69
Statement of Senator McCaskill................................... 71
Statement of Senator Johnson..................................... 74
Statement of Senator Rubio....................................... 76
Statement of Senator Sullivan.................................... 80
Statement of Senator Blumenthal.................................. 82
Statement of Senator Klobuchar................................... 84
Letter supporting the transition from 17 Internet companies
and trade associations, including the Internet Association
and U.S. Chamber of Commerce............................... 85
Statement dated May 23, 2016 from a group of seven civil
society and public interest groups supporting the IANA
transition................................................. 86
Statement of Senator Markey...................................... 89
Witnesses
Michael Beckerman, President and CEO, Internet Association....... 4
Prepared statement........................................... 5
Steve DelBianco, Executive Director, NetChoice................... 8
Prepared statement........................................... 10
Hon. David A. Gross, former U.S. Coordinator for International
Communications and Information Policy, U.S. State Department... 23
Prepared statement........................................... 24
Richard Manning, President, Americans for Limited Government..... 27
Prepared statement........................................... 29
Brett D. Schaefer, Jay Kingham Fellow, International Regulatory
Affairs, The Heritage Foundation............................... 37
Prepared statement........................................... 39
Andrew Sullivan, Chair, Internet Architecture Board (IAB)........ 52
Prepared statement........................................... 53
Appendix
Hon. Bill Nelson, U.S. Senator from Florida, prepared statement.. 93
Chris Calabrese, Vice President, Policy, Center for Democracy &
Technology, prepared statement................................. 93
Article dated June 7, 2016 entitled ``Obama's Internet
Endangerment'' by Rick Manning................................. 96
Response to written question submitted to Michael Beckerman by:
Hon. Marco Rubio............................................. 97
Response to written questions submitted to Steve DelBianco by:
Hon. John Thune.............................................. 98
Hon. Marco Rubio............................................. 99
Response to written questions submitted to Hon. David A. Gross
by:
Hon. John Thune.............................................. 103
Hon. Marco Rubio............................................. 103
Response to written questions submitted to Richard Manning by:
Hon. John Thune.............................................. 104
Hon. Marco Rubio............................................. 105
Response to written questions submitted to Brett D. Schaefer by:
Hon. John Thune.............................................. 107
Hon. Marco Rubio............................................. 108
EXAMINING THE MULTISTAKEHOLDER PLAN
FOR TRANSITIONING THE INTERNET ASSIGNED NUMBER AUTHORITY
----------
TUESDAY, MAY 24, 2016
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m. in
room SR-253, Russell Senate Office Building, Hon. John Thune,
Chairman of the Committee, presiding.
Present: Senators Thune [presiding], Wicker, Blunt, Rubio,
Ayotte, Fischer, Sullivan, Moran, Johnson, Gardner, Daines,
Cantwell, McCaskill, Klobuchar, Blumenthal, Schatz, and Markey.
OPENING STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
The Chairman. Good morning. This hearing will commence.
Thank you all for being here.
Two years ago, the Commerce Department's National
Telecommunications Information Administration, or NTIA,
announced its intention to transition the functions of the
Internet Assigned Number Authority, or IANA, to the global
multistakeholder community. Since that time, the
multistakeholder community, made up of businesses, technical
experts, academics, and civil societies, spent more than 26,000
working hours on the IANA transition proposal and held more
than 600 related meetings and calls.
At the outset of this hearing, I want to acknowledge the
hard work undertaken by many stakeholders, some of whom are
here today as witnesses, in taking on the daunting task of
developing the transition proposal. Regardless of where one
stands on the transition, we should recognize the difficult
work that has been done and the ongoing commitment that will be
needed if the transition is to be completed in a way that
addresses the important concerns that have been raised about
the future governance of the Internet.
On March 10, the Internet Corporation for Assigned Names
and Numbers, or ICANN, forwarded to NTIA for review the
transition proposal developed by the global community of
Internet stakeholders. NTIA set a target of 90 days to complete
its review, which is expected to be completed on June 10,
whereupon NTIA will issue a report stating its determination as
to whether the proposal meets the criteria that NTIA outlined
when it first announced the transition, such as the requirement
that the proposal maintain the openness and global
interoperability of the Internet.
If NTIA approves the transition, ICANN expects to produce
an implementation report by August 15. The existing IANA
contract is set to expire on September 30, 2016, unless NTIA
acts to extend it or Congress acts to delay the transition.
These dates are rapidly approaching, which is why I called this
hearing today to examine the stakeholders' transition proposal.
Our committee held an earlier hearing on the proposed IANA
transition in February 2015. At that hearing, I said I would
review any IANA transition plan to make sure it both meets the
requirements laid out by NTIA and that it adopts meaningful
accountability reforms, such as curtailing government
involvement in apolitical governance matters; providing
additional oversight tools to the multistakeholder community;
and adopting an independent dispute resolution process.
Last year, I also introduced the DOTCOM Act along with
Senators Schatz, Wicker, and Rubio, which our committee
approved on a bipartisan basis. With that bill, which also
passed the House of Representatives by a vote of 378 to 25, we
all made clear that any transition plan must not replace the
role of the NTIA with a government-led or intergovernmental
organization. Further, the DOTCOM Act would require any
transition plan to maintain the security, stability, and
resiliency of the Internet domain name system.
I hope to hear today from each of our witnesses whether
they believe the proposed IANA transition plan developed by the
multistakeholder community meets these requirements as well as
whether it satisfies NTIA's criteria. In particular, I am
interested to learn whether the stakeholder community has
delivered a proposal with accountability reforms strong enough
to give Congress and the American people confidence that the
time has come to privatize the IANA functions.
At last year's IANA hearing, I said that the goal of
everyone here is the same. We want one global Internet that is
not fragmented nor hijacked by authoritarian regimes. Whether
the IANA transition goes forward or not, I know that everyone
wants to ensure all Internet users can continue to have
complete faith that the IANA functions will be carried out
effectively and seamlessly long into the future.
We have a very distinguished panel here today--and I want
to thank them for their time and effort in their testimony--
representing a diverse variety of perspectives, professional
experiences, and personal views. I'm looking forward to hearing
from each of you.
With that, I'll turn to our Ranking Member, Senator Schatz,
for any comments he would like to make.
STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
Senator Schatz. Thank you, Mr. Chairman. Good morning.
The Internet has its roots in America, but its social,
economic, and human rights benefits depend on the Internet's
global nature. A successful IANA transition will ensure that
the global community continues to benefit from an open
Internet.
The Internet by its very nature is a network of networks
that exists solely because millions of stakeholders and users
continue to agree that a free and open Internet is essential
and that the multistakeholder approach to global Internet
governance actually works. Yet there are those who feel that
the government itself, specifically the Department of Commerce,
must maintain control over the IANA functions and through that,
somehow, the Internet totally.
It is ironic to me that so-called ``small government
types'' want a Commerce Department bureau to oversee the
technical underpinnings of the Internet. If the goal is to
preserve and grow a free and open global Internet, you can't
have an agency bureau run it forever, even if it's just the
technical functions.
The consensus plan for decades through many
administrations, Democratic and Republican, has always been to
turn the IANA functions over to the private sector. In fact,
this Congress and the U.S. Government at large have expressed
unanimous support for the multistakeholder model of
international Internet governance. There's no question that the
transition must move forward.
Now, the Internet community has submitted a proposal to
NTIA for the transition, and technical experts, civil society,
industry, and others from the global Internet community
developed this proposal over several years. These stakeholders,
large and small, believe that this plan and the IANA transition
itself are essential to preserve and advance the global
Internet.
This community of experts has also expressed that delay or
termination of the transition would undermine our nation's
commitment to the free and open Internet. And they warn that it
could even result in a fractured Internet that no longer serves
as a vital engine of commerce and innovation.
These views should not be dismissed lightly. It's important
that we stay on track with this transition which can be
successfully completed this fall. The timing allows for NTIA to
conduct a full review of the plan to make sure it complies with
NTIA and congressional requirements for the transition. These
requirements are clear and will deliver a new governance
structure that will preserve the multistakeholder model that is
at the heart of global Internet governance. I look forward to
NTIA's review that will determine if the plan makes the
necessary reforms to ensure ICANN's accountability to the
global multistakeholder community.
Finally, I appreciate the Chairman holding today's hearing.
He and I have partnered with several Senators on the DOTCOM Act
in making sure that the transition goes smoothly. We take the
Commerce Committee's oversight of this matter very seriously,
and I look forward to the hearing.
The Chairman. Thank you, Senator Schatz.
We do, as I said, have a very distinguished panel of
witnesses today, and I'm going to ask them to make their
opening statements. First off, we'll hear from Michael
Beckerman, who is President and CEO of the Internet
Association; followed by Steve DelBianco, who is Executive
Director of NetChoice; the Honorable David Gross, who is the
former U.S. Coordinator for International Communications and
Information Policy at the State Department; Rick Manning, who
is President for Americans for Limited Government; Brett
Schafer with the Heritage Foundation; and Andrew Sullivan, who
is Chair of the Internet Architecture Board.
So I'll ask you all as much as you can--we've got a large
panel today--if you could confine your opening remarks to as
close to 5 minutes as possible, and we will certainly, of
course, submit your entire written statements for the record.
But we want to maximize the opportunity for members of the
Committee to ask questions.
So we'll start on my left, on your right, with Mr.
Beckerman. Please proceed.
STATEMENT OF MICHAEL BECKERMAN, PRESIDENT AND CEO, INTERNET
ASSOCIATION
Mr. Beckerman. Thank you. Chairman Thune, Ranking Member
Nelson, and distinguished members of the Committee, thank you
for inviting me to testify before you today at this important
hearing on the IANA transition. My name is Michael Beckerman,
and I am the President and CEO of the Internet Association.
The IA represents almost 40 of the world's leading Internet
companies. Our mission is to foster innovation, promote
economic growth, and empower people through the free and open
Internet. I'd like to summarize my remarks and ask that my full
written testimony be submitted for the record.
The Internet Association and its member companies have been
actively involved in the IANA transition to ensure that the
final proposal is good for our member companies, good for users
around the world, and the Internet writ large. This is a plan
that will transition the IANA functions in a way that will keep
the Internet safe, secure, reliable, and resilient.
Our goal throughout this process has been to ensure that a
post-transition ICANN is fortified with the appropriate
separation of powers necessary to protect the system from
capture by any one stakeholder group, thus preserving a free
and open Internet. We share the concern for members of this
committee that foreign governments, specifically China or
Russia or even the U.N.'s ITU, want to bring the Internet under
their control. But we want to make sure that everybody
recognizes that a delay or blocking this transition makes this
outcome more likely, not less.
The transition we're talking about today is designed
specifically to keep a government takeover from happening.
Simply put, the best way to protect the Internet from
governments and political interests and the parade of horribles
that we'll talk about today is to empower the multistakeholder
process by moving forward the transition. The successful
transition of IANA functions serves U.S. interests, because it
will ensure that the people with the most at stake in the
Internet's future growth are entrusted with the responsibility
to protect the Internet and given the power to do so.
This is not a foregone conclusion. As you know, there are
countries that want to impose a top-down, state-centric
governance model for the Internet. If they have their way, the
global and open Internet as we know it today will cease to
exist. This will be bad for Internet companies, bad for users,
and bad for the global economy, to say nothing of free
expression around the world.
To be clear, the Internet Association and our members have
not been a rubber stamp on this process. We'll be the first to
argue that a transition alone is not enough. The Internet
Association agrees that the IANA transition must be done with
carefully crafted proposals that provide for a successful
transition.
The companies, members of civil society, technologists, and
users that drive the Internet worked together to craft
proposals that are better than the status quo. I'd like to
quickly highlight three ways these proposals ensure that a
post-transition ICANN is truly accountable to the community and
an improvement over ICANN's current structure.
One, ICANN's mission will be explicitly limited to the
operation of the Domain Name System and the policies that are
reasonably necessary to facilitate its openness,
interoperability, resilience, and stability. The proposal also
explicitly states that anything not articulated in the bylaws
would be outside of ICANN's mission.
Second, for the first time, this proposal distinguishes
between ICANN bylaws and fundamental bylaws. Included here are
mechanisms establishing new accountability checks and balances,
and this designation of fundamental bylaws cannot be amended by
Board action alone.
And, third, ensuring limited government and less government
control. The Government Advisory Committee, GAC, will be more
constrained in the future than it is presently. This will
significantly limit the GAC's ability to overturn
multistakeholder policy by a number of reforms, including that
GAC advice must be issued without objection, it must be
accompanied by a rationale, and the Board must not violate its
own bylaws when implementing GAC advice.
Ensuring the proper limitations on ICANN is important to
the future of the Internet, and the Internet Association and
the multistakeholder community will continue to be intimately
engaged with the transition process and the implementation as
it moves forward.
Thank you for having me testify today. I look forward to
the questions the Committee may have.
[The prepared statement of Mr. Beckerman follows:]
Prepared Statement of Michael Beckerman, President and CEO,
Internet Association
Introduction
Chairman Thune, Ranking Member Nelson, and distinguished members of
the Committee, thank you for inviting me to testify before you at this
important hearing on the Internet Assigned Numbers Authority (IANA)
transition.
My name is Michael Beckerman, and I am the President and CEO of the
Internet Association. The Internet Association represents almost 40 of
the world's leading Internet companies.\1\ Our mission is to foster
innovation, promote economic growth, and empower people through the
free and open Internet. As the voice of the world's leading Internet
companies, our job is to ensure that all stakeholders understand the
benefits the Internet brings to our economy.
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\1\ The Internet Association's members include Airbnb, Amazon,
Coinbase, DoorDash, Dropbox, eBay, Etsy, Expedia, Facebook, FanDuel,
Google, Groupon, Handy, IAC, Intuit, LinkedIn, Lyft, Monster Worldwide,
Netflix, Pandora, PayPal, Pinterest, Practice Fusion, Rackspace,
reddit, Salesforce.com, Snapchat, Spotify, SurveyMonkey, Ten-X,
TransferWise, TripAdvisor, Turo, Twitter, Uber Technologies, Inc.,
Yahoo!, Yelp, Zenefits, and Zynga.
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The companies represented by the Internet Association depend on the
global, open Internet. Accordingly, the Internet Association and its
member companies have been actively involved in the IANA transition
process to ensure that the final proposal is good for our member
companies, users around the world, and the Internet writ large. This is
a plan that will transition the IANA functions to the global
multistakeholder community--and remove unnecessary government
involvement in the management of the engine of the 21st century digital
economy--in a way that will keep the Internet safe, security, reliable,
and resilient. We know this because we were involved in making sure the
proposal accomplished these goals. Alongside our direct engagement in
the IANA transition process, the Internet Association is also a member
of the ICANN Business Constituency.\2\
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\2\ The mission of the Business Constituency is to promote the
development of an Internet that promotes user confidence, that the
Internet is a safe place to do business, is competitive in the supply
of registry and registrar services, and is technically stable, secure,
and reliable. The Business Constituency supported the final proposals
by the IANA Stewardship Transition Coordination Group (ICG) and Cross
Community Working Group on Enhancing ICANN Accountability (CCWG-
Accountability).
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I will address my testimony today in three parts, which are also
important questions for the Committee to consider as it moves forward:
First, are U.S. interests best served by an IANA transition?
Second, do the IANA transition proposals sent from the
Internet Corporation for Assigned Names and Numbers (ICANN) to
NTIA this March ensure a successful transition?
Third, what issues should a post-transition ICANN focus on
in the short to long term?
The IANA transition has been long contemplated, beginning in 1997,
when the U.S. Government first moved to privatize Internet technical
functions in an effort to promote innovation and competition online.
Our goal throughout this process has been to ensure that a post-
transition ICANN is aligned with the stringent criteria set forth in
2014 by the National Telecommunications and Information Administration
(NTIA) and is fortified with the appropriate separation of powers
necessary to protect the system from capture by any one stakeholder
group, thus preserving a free and open Internet.
U.S. Interests Are Better Served By A Successful IANA Transition
The successful transition of the IANA functions serves U.S.
interests because it will ensure that people with the most at stake in
the Internet's future growth--the small and medium businesses, the
technologists, the companies and members of civil society, and
individual users--are entrusted with the responsibility to ensure the
open Internet, and are given the powers to do so.
This is not a foregone conclusion. There are countries that want to
impose a top-down, state-centric governance model for the Internet.
These countries believe that something as powerful as the Internet
needs to be tamed by governments, or in some cases fragmented so that
networks stop at national borders. If they have it their way, the
global and open Internet as we know it will cease to exist. This will
be bad for Internet companies, bad for Internet users, and bad for the
global economy--to say nothing of free expression and human rights
around the world.
The Internet Association believes that a robust multistakeholder
model is the best method to maintain an Internet free from government
control. Maintaining the U.S. Government's ``special'' role--which has
always hidden the reality that it was the Internet community itself
that was primarily responsible for keeping the Internet working around
the world--could encourage other governments to break off and create
their own systems, endangering the seamless functionality and openness
of the global Internet.
Fragmentation of the Internet would impede the free flow of
information online and free speech worldwide, and would have political,
economic, social, and cultural costs to society.\3\ The risks to the
multistakeholder model should a transition not proceed are significant,
and as such, the transition should be supported.
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\3\ See Julius Genachowski and Gordon Goldstein, `` `Global'
Internet Governance Invites Censorship,'' (April 3, 2014) available at:
http://www.wsj.com/articles/SB1000142405270230397
8304579471670854356630
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Failure to implement a successful IANA transition will serve to
undermine the multistakeholder model, potentially stripping power from
a model that has helped make the Internet the success it is today. It
could further expose Internet governance to the whims of individual
governments around the world looking to fill the void of a failed IANA
transition, in turn creating a risk to the economic, social, and
cultural engine that we all agree must be protected. Instead, we must
focus on not only moving forward with a transition, but on all
stakeholders creating an ecosystem for success in a post-transition
world.
IANA Stewardship Transition Coordination Group (ICG) Proposals Match
Principles For Successful Transition
A transition alone is not enough: the Internet Association agrees
that the IANA transition must be done with carefully crafted proposals
that provide for a successful transition.
In March 2014, when NTIA announced that it intended to transition
the ICANN functions to a global multistakeholder community, NTIA told
ICANN that the transition proposal must have broad community support
and address the following four principles:
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 stated that it would not accept a proposal that replaces
the NTIA role with a government-led or an intergovernmental
organization solution. These criteria for the transition are well-
founded principles for the success of a transition.
The companies, members of civil society, technologists, and users
that drive the Internet worked together to craft proposals that meet
these criteria, and ICANN delivered proposals on both the IANA
transition and enhanced ICANN accountability to NTIA for review in
March 2016. To highlight, here are four examples of the way these
proposals create the checks and balances needed to ensure that post-
transition ICANN is truly accountable to the community, even without a
special role for NTIA:
Under the Accountability Proposal submitted to NTIA, ICANN's
mission is explicitly ``limited to coordinating the development
and implementation of policies that are designed to ensure the
stable and secure operation of the Domain Name System and are
reasonably necessary to facilitate its openness,
interoperability, resilience, and/or stability.'' \4\
Helpfully, the proposal also explicitly states that anything
not articulated in the bylaws would be outside ICANN's mission.
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\4\ CCWG-Accountability Supplemental Final Proposal on Work Stream
1 Recommendations, ICANN, (Feb. 23, 2016) at 26 available at https://
www.icann.org/en/system/files/files/ccwg-accountability-supp-proposal-
work-stream-1-recs-23feb16-en.pdf
The proposal for the first time distinguishes between ICANN
bylaws and fundamental bylaws. Included in the fundamental
bylaws are mechanisms establishing new accountability checks
and balances and changes to ICANN's mission. This designation
of fundamental bylaws matters because fundamental bylaws cannot
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be amended by board action alone.
The proposal creates a further check on ICANN by improving
the Independent Review Process (IRP) and Request for
Reconsideration (RFR) mechanisms. As we know from the U.S.
experience, judicial review of decisions is a very important
tool in our democracy. The counterpart to judicial review in
the ICANN system is IRP. Under the Accountability Proposal, the
current IRP mechanism is independent arbitration that ensures
that ICANN does not go beyond its limited mission through its
actions and does not violate its bylaws. Under the
Accountability Proposal, this arbitration mechanism is
strengthened to make it more accessible and less costly. It is
also made permanent through the establishment of a standing
panel of independent experts with expertise in ICANN-related
fields.
The Governmental Advisory Committee (GAC) will be more
constrained in the future than it is presently. This will
significantly limit the GAC's ability to overturn
multistakeholder policy:
that GAC advice be issued without objection in order
to compel the Board to attempt to seek a mutually agreeable
solution if the Board does not accept that advice;
that GAC advice must be accompanied by a rationale;
and
that the Board must not violate its own bylaws when
implementing GAC advice.
These restraints represent significant reforms to the way the GAC
issues advice, and more than outweigh raising the threshold for the
Board to reject GAC advice is raised to 60 percent. Additionally, while
the GAC may participate in Empowered Community processes, it may not
participate as a decisional entity in any matter related to the Board's
implementation of GAC advice.
The transition proposals satisfy NTIA's stringent criteria. They
satisfy our condition that any transition happen in a thoughtful way
that protects the open Internet and removes unnecessary government
involvement. Put simply, the proposals ensure that the same community
of innovators, entrepreneurs, and users who made the Internet will be
entrusted with keeping it safe for future generations.
Priorities For The Post-Transition ICANN
As the IANA transition proceeds, our companies--and the rest of the
global Internet community--are going to stay intimately involved and
will keep close watch on the implementation of the accountability
proposals.
Successful implementation of what the proposals for the Internet
Association includes:
First, ICANN, under the leadership of its new CEO, should
demonstrate a clear commitment to the Accountability Proposals
in the first one hundred days post-transition. This will serve
as an important signal to all stakeholders that that it intends
to honor both the letter and the spirit of the transition.
Second, ICANN must prioritize not only Workstream 1, but
also the Workstream 2 proposals. This latter Workstream is not
yet complete and includes several very important issues for the
multistakeholder community going forward. As one important
stakeholder in ICANN--the GNSO-explained, Workstream 2 issues
``remain vitally important and must be budgeted and supported
at a level sufficient to ensure their development and
implementation.'' \5\
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\5\ Thomas Rickert, Mathieu Weill, Leon Felipe Sanchez Ambia,
Transmittal of results of GNSO Council consideration of CCWG-
Accountability Supplemental Final Proposal, (Mar. 9, 2016) at 10,
available at http://gnso.icann.org/en/correspondence/bladel-to-ccwg-
accountability-chairs-09mar16-en.pdf
Third, the new ICANN CEO should within his first 100 days in
office send a clear signal to the multistakeholder community at
the next ICANN gathering in Helsinki that ICANN will not engage
in mission creep beyond its core mission statement and that it
honors this fundamental bylaw and the clarity it brings to the
multistakeholder community. Of particular concern to Internet
Association members is that a post-transition ICANN would
become a new forum for policing and enforcement beyond its core
mandate. Specifically, ICANN should leave intellectual property
content policing and enforcement to the stakeholders better
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equipped to handle these issues.
Ensuring the proper limitations on ICANN is important to the future
of the Internet and the future of other international multistakeholder
communities that wish to keep the Internet free and open for future
generations.
Thank you for having me testify on this important issue. I look
forward to any questions you may have.
The Chairman. Thank you, Mr. Beckerman.
Mr. DelBianco?
STATEMENT OF STEVE DelBIANCO, EXECUTIVE DIRECTOR, NetChoice
Mr. DelBianco. Thank you, Chairman Thune and members of the
Committee. I'm Steve DelBianco, Executive Director of
NetChoice, a trade association representing the leading online
and e-commerce companies. And I'm deeply involved at ICANN,
having been elected six times as the policy chair for the
business constituency, and I represent commercial stakeholders
on the working group that developed the accountability
proposal.
Let me start by thanking this committee for approving the
DOTCOM Act last June. When ICANN's gathering was happening in
Argentina, when I told the 1,500 people in the room that the
DOTCOM Act required implementation of the community's proposal,
everyone stood to applaud. So let the record show there was a
standing ovation for the U.S. Congress in Buenos Aires.
[Laughter.]
Mr. DelBianco. Let me also thank the members of this
committee for your serious questions about the transition. The
good news is that wherever your concerns actually relate to the
functions of policies of ICANN and IANA, I will describe how
your concerns are addressed.
First, there's some general angst, asking the question:
does the expiration of IANA give away the U.S. Internet? Well,
in the 1980s, American engineers developed the recipe for
Internet protocol, and they promptly gave that recipe to the
world. That enabled engineers anywhere in the world to create
their own IP network and connect to the Internet, and the U.S.
doesn't own the Internet any more, Mr. Chairman, than South
Dakota owns the recipe for chislic or cubed meat.
The U.S. Government did create ICANN as a way to
internationalize and privatize management of the Domain Name
System. However, it is neither sustainable or necessary for the
U.S. Government to retain its unique role forever, and, in
fact, retaining the role increases the risks you are worried
about.
Second, let me describe why ICANN will maintain its legal
presence in the United States. This is something this committee
probed in your February 2015 hearing, and you got a verbal
assurance from ICANN's CEO, but we looked for stronger stuff,
belts and suspenders, and the belts are in the ICANN bylaws,
which state that the principal office for the business of ICANN
shall be in Los Angeles. The suspenders are in the Articles of
Incorporation, where it says ICANN, ``is organized under
California nonprofit public benefit corporation law.'' And our
proposal requires 75 percent community approval to change that
Article of Incorporation.
Third, the proposal will not see an increase in the power
of governments. Just after NTIA's announcement of transition,
NetChoice proposed stress tests to evaluate new accountability
mechanisms. A prominent stress test was where the GAC could
change to majority voting from its consensus method. In
response, we locked in the consensus method, we added one more
Board vote to reject consensus advice, and we exclude the GAC
from the community decisions to challenge a Board decision on
accepting the GAC's advice.
Some governments oppose these limits on GAC influence. The
France Minister of IT complained recently, ``This will
marginalize states in the decisionmaking processes of ICANN,
especially compared to the role of the private sector.'' Well,
France is right. The full package of accountability measures
sufficiently cabins governmental influence and fully meets
NTIA's criteria.
Fourth, the proposal would not increase government
censorship of the Internet. Recent moves by the Chinese
government to control domestic domain name registration is
troubling to all of us since it could fragment the Internet and
isolate China's businesses and citizens. But the Chinese
government's new policies are not an attempt to influence
ICANN, because the Chinese government censorship works only on
the edge of the Internet when traffic crosses China's physical
borders. So neither China nor other governments can extend
censorship to the core of the Internet so long as our
multistakeholder community controls ICANN policymaking and
holds ICANN's Board accountable.
And then, finally, a significant delay in this transition
would create far more risks than benefits. Some of you worry
that the proposal would create a radically different governance
structure for ICANN. But the proposal is somewhat complicated.
I'll acknowledge that. But it is rooted in California law in
order to extend legal powers to the community that ICANN is
designed to serve.
A delay to test community powers--there's no expectation
when the community would exercise the new powers to challenge a
Board decision. These are extraordinary measures. Nor does it
make sense to delay two years just to see how Work Stream 2
turns out. The new bylaws give the community the power to force
reforms on ICANN at any time. So the only way to pause and
evaluate all changes the community would ever make in the
future would be to delay the transition forever.
But a long-term delay of transition would rekindle the fire
at the United Nations, who sees the legacy U.S. Government role
as something they should be doing. With the transition, we
eliminate the role where one government has the unique role,
and the U.N. could not longer point to the U.S. role and say
they should step into those shoes.
I'll close by thanking you for your committee's deep
engagement on this transition and for backing the
multistakeholder community. Your letters and the hearing has
made this a better process, and it's now ready for completion.
I look forward to your questions.
[The prepared statement of Mr. DelBianco follows:]
Prepared Statement of Steve DelBianco, Executive Director, NetChoice
I am Executive Director of NetChoice, an association of leading
online businesses.\1\ At state, federal, and international fora,
NetChoice promotes the integrity and availability of the Internet.
We've attended 32 ICANN meetings and I'm serving a 6th term as policy
chair for ICANN's Business Constituency. I've attended 9 Internet
Governance Forum (IGF) meetings and testified in 8 Congressional
hearings on ICANN and Internet governance, including 3 hearings
specifically on the IANA transition and ICANN Accountability.
---------------------------------------------------------------------------
\1\ See http://www.NetChoice.org. This statement reflects the view
of NetChoice and does not necessarily represent the views of any
individual member company.
---------------------------------------------------------------------------
NetChoice members depend upon a secure Internet address system
that's resilient to cyber attacks and abuse. We need an Internet that
works around the globe--free from censorship, discriminatory
regulation, and taxation. We need policies that are predictable and
enforceable, facilitating innovation and creativity while protecting
consumers. I will focus on three points today:
1. Over 18 years and three administrations, the U.S. Government has
use light-touch oversight over ICANN. However, it is neither
sustainable nor necessary for the U.S. to retain its unique
role forever. In fact, retaining this unique role increases the
risk of Internet fragmentation and government overreach. At
NTIA's request, the Internet community created proposals to let
ICANN loosen ties to the U.S. Government and strengthen its
accountability to the global Internet user community and
keeping core Internet functions free from governmental control.
2. NTIA's requirements for this transition guided the design of new
mechanisms to: manage core Internet functions; hold ICANN
accountable; and prevent government capture after the
transition. Congress' role in this transition began with
questions about accountability and stress tests, such as the
guidance provided by this committee in your Feb-2015 hearing.
Your committee backed the community with the DOTCOM Act,
insisting that NTIA require ICANN to adopt the multistakeholder
proposals as a condition of the transition.
3. The community's proposal meets NTIA requirements and reduces
governments' ability to override community consensus with its
advice to ICANN's board. While we have nearly completed ICANN
Bylaws to implement the proposal, a few implementation tasks
need to be finished in the months ahead. This transition will
for the first time make ICANN accountable to the technologists,
businesses, civil society, and users who depend upon the
Internet to drive economic growth and social evolution around
the world. This is a significant improvement on the ICANN
accountability we have today.
1. Where are we in this transition process for ICANN and IANA?
This committee has led Senate oversight of NTIA's transition plan,
which can be visualized with this timeline:
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
When ICANN's board accepted our transition proposals and forwarded
them to NTIA in March, the timeline leading up to the IANA contract
expiration date on 30-Sep was tight, but doable:
20-Apr: Draft new bylaws posted for public comment period of
30 days.
Late May: Evaluate public comments and ICANN board approves
new bylaws.
10-Jun: NTIA evaluates adopted bylaws and reports to
Congress in time for review before recess in mid-July. Berkman
Center review expected to be part of this report.
15-Aug: NTIA evaluates implementation of community
proposals, since this is the 45-day notice period for NTIA to
extend the IANA contract, if needed.
The new bylaws will give the community powers to ensure these
measures can be implemented--even if ICANN's board and management were
to object. Next month, the ICANN community will begin designing Work
Stream 2 accountability measures, addressing transparency, diversity,
and human rights.
2. How did we get to this point?
In the Annex to this statement we have summarized key events in the
18-year evolution of ICANN. We chronicle the escalating resentment of
other governments over the unique role retained by the U.S., leading to
the 2009 termination of U.S. oversight agreements and replacement with
the Affirmation of Commitments. The diagram below shows today's
multiple contractual ties and connections between ICANN and its global
stakeholders.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
The present arrangement reflects growing independence for ICANN,
despite its two bilateral agreements with NTIA--the IANA Contract and
Affirmation of Commitments (see above). Then, the 2013 Snowden
revelations--though not unique to the U.S. and entirely unrelated to
the stewardship of the IANA functions--stoked international concerns
that led to the administration's decision to relinquish the legacy link
between ICANN and the U.S. Government--the IANA functions contract.
3. NTIA's announced transition for IANA functions and ICANN
accountability
In March 2014, the Commerce Department announced that it would
transition its stewardship of the Internet Assigned Numbers Authority
(IANA) functions to the global multistakeholder community. Positive
global response was immediate, signaling that this move, at this time,
might relieve some pressure from foreign governments that were
demanding the U.S. end its unique U.S. role and give governments and
the U.N. a greater role in IANA and ICANN oversight.
NTIA asked ICANN to develop a transition plan to shift stewardship
of IANA functions to ``the global multistakeholder community,'' saying
the transition proposal must have broad community support and satisfy
four principles in replacing NTIA's role \2\:
---------------------------------------------------------------------------
\2\ Press Release, ``NTIA Announces Intent to Transition Key
Internet Domain Name Functions'', March 14, 2014, at http://
www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-
key-internet-domain-name-functions
---------------------------------------------------------------------------
Support and enhance the multistakeholder model
Maintain the security, stability, and resiliency of the
Internet DNS
Meet the needs and expectation of the global customers and
partners of IANA services
Maintain the openness of the Internet
NTIA also added a statement that it would not give up IANA control
if the plan developed by ICANN would place other governments in the
legacy role of the U.S. With the experience of the last 18 years, it's
appropriate for the U.S. to impose these principles and to prevent any
government-led organization from replacing the former U.S. role after
the transition.
At the same time, NTIA and most stakeholders recognized that NTIA's
existing IANA contract provides a broader accountability framework for
ICANN, and that accountability enhancements should be developed and
adopted in parallel with the transition. After NTIA's 2014
announcement, the Internet community and ICANN developed two tracks to
respond to the challenge (as shown on the timeline on page 2):
IANA Stewardship track: Placing the global Internet community
in the role historically held by NTIA in the IANA contract with
ICANN.
ICANN Accountability track: Giving the global Internet
community more power to hold the ICANN corporation accountable
because NTIA will lose the leverage associated with the IANA
contract once it expires.
On each track, the community is comprised of representatives of
ICANN's recognized Advisory Committees and Stakeholder Organizations,
including business; governments; and civil society.
The IANA Stewardship Track: ICANN structured the IANA track to have
community groups with customers of the numbers, protocol parameters,
and naming functions. They began meeting in Oct-2014 and published a
final proposal in Oct-2015, with these elements:
Create a new legal entity to contract with ICANN to operate
IANA naming functions
Establish a customer committee to monitor the performance of
IANA functions
Establish a periodic review of the IANA Functions, embedded
in ICANN bylaws
Empower the community select a new operator for the IANA
Functions, if needed
Notably, the IANA naming proposal relies upon enhanced community
powers in the ICANN Accountability Track to hold ICANN to its new
obligations.
The ICANN Accountability Track: Beginning in Dec-2014, ICANN
stakeholders named representatives to a cross-community working group
(CCWG) representing the companies, technical experts, civil society
activists, and users that are driving the Internet's growth and depend
on the free and open Internet. (I serve as the representative of
Commercial Stakeholders on the CCWG). After more than 200 meetings and
calls, and over 12,000 e-mails over 14 months, the 200 participants in
CCWG published a final proposal in Feb-2016 giving the community new
powers to ensure ICANN was answerable to more than just itself.\3\ New
powers for the community include the ability to:
---------------------------------------------------------------------------
\3\ Final Accountability Proposal, at https://www.icann.org/en/
system/files/files/ccwg-accountability-supp-proposal-work-stream-1-
recs-23feb16-en.pdf
---------------------------------------------------------------------------
Inspect ICANN's internal documents and records
Challenge board actions via Independent Review Panels whose
decisions are binding
Veto bylaw changes proposed by the ICANN board
Approve any changes to ICANN Fundamental Bylaws (deemed core
to ICANN's governance structure) and Articles of Incorporation
Veto strategic plans and budgets proposed by the ICANN board
Control the periodic reviews required by the Affirmation of
Commitments
Remove individual ICANN board directors
Recall the entire ICANN board, as a last-resort measure
ICANN's lawyers and the community's independent legal counsel
jointly drafted new ICANN bylaws, which the CCWG reviewed and published
for comment on 20-Apr-2016. (NetChoice supports the draft bylaws,
subject to a few minor refinements.) The comment period closed 21-May,
after which the bylaws may be revised to reflect comments, and then to
the ICANN board for formal acceptance.
In the next section we summarize questions and concerns raised by
members of this committee as well as hearings and legislation handled
by the committee, regarding the announced transition of IANA and
enhancing ICANN accountability.
4. Transition and accountability concerns raised by members of this
committee
This committee and its members have engaged early and often in
transition discussions, with letters and hearings that have shaped the
process, as summarized below:
Ten present members of this committee were among 35 Senators
who wrote NTIA in Apr-2014 to reiterate the 2012 joint
congressional resolution supporting the multistakeholder model,
and to ask tough questions about this transition: why, by what
authority, when, how, and what about potential risks? \4\
---------------------------------------------------------------------------
\4\ 2-Apr-2014, ``Thune, Rubio Demand Answers from Administration
on Internet Transition``, at http://www.thune.senate.gov/public/
index.cfm/2014/4/thune-rubio-demand-answers-from-administration-on-
internet-transition
In May-2014 Senator Rubio was joined by 7 committee members
calling for a hearing on NTIA's transition decision \5\.
---------------------------------------------------------------------------
\5\ 22-May-2014, ``Rubio, Commerce Republicans Seek Answers On
Future Of Internet Governance'', at http://www.rubio.senate.gov/public/
index.cfm/press-releases?ID=23503316-cea1-4bce-a4e6-af02ea864470
In Jul-2014 Senators Thune and Rubio wrote to ICANN chairman
Stephen Crocker, recommending several reforms at ICANN:\6\
---------------------------------------------------------------------------
\6\ 31-Jul-2014, Letter from Senators Thune and Rubio to ICANN
Chairman Stephen Crocker, at https://www.icann.org/en/system/files/
correspondence/thune-rubio-to-crocker-31jul14-en.pdf
1. The transition should not allow governments to increase their
---------------------------------------------------------------------------
influence
2. Keep policy development separate from technical IANA functions
3. Increase threshold for board decisions to 4/5 of voting
directors
4. Give the community additional transparency and oversight tools
5. Improve the independent dispute resolution process (IRP)
6. Bylaws should enshrine ICANN's obligations under the
Affirmation of Commitments
This committee held a critical hearing in Feb-2015, where
members pressed ICANN's CEO Fadi Chehade and NTIA's Larry
Strickling on several points: \7\
---------------------------------------------------------------------------
\7\ 25-Feb-2015, Senate Commerce Committee hearing on M-S model of
Internet Governance, video and statements at http://
www.commerce.senate.gov/public/index.cfm/hearings?ID
=683924AE-83D7-4BF4-922A-CDECB9556BA9, hearing transcript at https://
www.gpo.gov/fdsys/pkg/CHRG-114shrg98129/html/CHRG-114shrg98129.htm
1. Sen. Thune emphasized that the historical U.S. role must not be
---------------------------------------------------------------------------
replaced by a government-led structure.
2. Senators Thune and Blunt queried ICANN's commitment to retain
its U.S. headquarters.
3. Sen. Fischer questioned Chehade on threshold for board
rejection of government advice
4. Sen. Thune and others suggested that the Affirmation of
Commitments be made permanent by incorporating its reviews
in the ICANN bylaws.
On 25-Jun-2015, this committee favorably reported S. 1551,
the DOTCOM Act that passed the House two days earlier by an
overwhelming margin of 378 to 25.\8\ This legislation would
require ICANN to adopt the multistakeholder community proposals
before NTIA could complete the IANA transition.
---------------------------------------------------------------------------
\8\ 23-Jun-2015, Roll call vote on HR 805, at http://
clerk.house.gov/evs/2015/roll377.xml
In Sep-2015 Senator Cruz led a bicameral request for GAO to
determine whether the administration has the power to
relinquish IANA functions.\9\
---------------------------------------------------------------------------
\9\ 28-Sep-2015, Sen. Cruz Leads Bicameral Letter Asking GAO to
Determine Whether Obama Administration Has Power to Give Away the
Internet, at http://www.cruz.senate.gov/?p=press_release&id=2453
In Feb-2016 Senators Cruz, Lankford, and Lee wrote to ICANN,
objecting to actions they believe supported Chinese Internet
censorship.\10\ ICANN's response \11\ was then followed by
another letter from the same Senators on 3-Mar-2016, referring
to China's latest regulations for Internet domain
registrations.\12\
---------------------------------------------------------------------------
\10\ 4-Feb-2016, Letter to ICANN CEO, at https://www.icann.org/en/
system/files/correspondence/cruz-et-al-to-chehade-04feb16-en.pdf
\11\ 19-Feb-2016, ICANN CEO response letter, at https://
www.icann.org/en/system/files/correspondence/chehade-to-cruz-et-al-
19feb16-en.pdf
\12\ 3-Mar-2016, Follow-up letter from Senators Cruz, Lankford and
Lee to ICANN CEO, at https://www.icann.org/en/system/files/
correspondence/cruz-et-al-to-crocker-03mar16-en.pdf
On 4-Apr-2016, Senators Cruz, Lankford, and Lee wrote to
ICANN demanding answers to questions they had raised in their
previous letter.\13\
---------------------------------------------------------------------------
\13\ 4-Apr-2016, Letter from Senators Cruz, Lankford, and Lee to
ICANN, at https://www.icann.org/en/system/files/correspondence/cruz-
lankford-lee-to-crocker-04apr16-en.pdf
Last week, on 18-May-2016, Senator Rubio reportedly
circulated a letter to NTIA suggesting that some period of
delay in the IANA transition was necessary in order to ensure
satisfactory implementation of the proposal.\14\
---------------------------------------------------------------------------
\14\ 18-May-2016, Mario Trujillo in The Hill, ``Republicans renew
attempts to delay Internet domain handoff ``, at http://thehill.com/
policy/technology/280354-republicans-continue-attempts-to-delay-
internet-domain-handoff
On 19-May-2016, Senators Cruz, Lankford, and Lee wrote to
Commerce Secretary Pritzker and NTIA Assistant Secretary
Strickling, giving reasons they believe NTIA should extend the
IANA contract:\15\
---------------------------------------------------------------------------
\15\ 19-May-2016, Letter from Senators Cruz, Lankford, and Lee to
Secretary Pritzker and Assistant Secretary Strickling, at http://
www.cruz.senate.gov/files/documents/Letters/20160519
_ICANNLetter.pdf
1. They believe the proposal ``significantly increases the power
---------------------------------------------------------------------------
of foreign governments''
2. An undefined commitment to respect human rights
3. The IANA transition might imply a transfer of government
property
4. ICANN may move its headquarters outside the U.S.
5. The proposal will embolden an unaccountable ICANN board
Below, I address the major points raised by committee members,
drawing on my hands-on experience with the ICANN accountability and
transition planning process, where I have represented commercial
stakeholders since the transition process began in 2014.
5. The accountability enhancements and transition plan address
committee concerns
At the same time committee members were raising questions about the
transition, the CCWG was also pursuing a structured way to assess how a
post-transition ICANN could be held accountable in the face of internal
and external threats. The month after NTIA announced the transition, I
testified before the House Commerce Committee about stress tests to
inform and evaluate accountability proposals.\16\ I led the working
group that applied these stress tests to the accountability proposal,
and we ultimately determined that proposed new accountability measures
were a significant improvement over existing measures, and would give
the community adequate powers to challenge ICANN's actions.
---------------------------------------------------------------------------
\16\ See Stress Tests, pages 7-10 at NetChoice Testimony before the
House Energy & Commerce Committee, Subcommittee on Communications and
Technology--Ensuring the Security, Stability, Resilience, and Freedom
of the Global Internet, 2-Apr-2014
---------------------------------------------------------------------------
Several stress tests led CCWG to address concerns also raised by
committee members, starting with the risks of having ICANN quit the
Affirmation of Commitments and eliminate its legal presence in the
United States, as discussed below.
5.1 ICANN will maintain its legal presence in the United States
Your Feb-2015 hearing touched on Affirmation of Commitments section
8b, which commits ICANN to ``remain a not for profit corporation,
headquartered in the United States of America with offices around the
world to meet the needs of a global community.'' In your Feb-2015
hearing, ICANN CEO Chehade repeated this commitment, saying, ''ICANN
shall remain in the United States of America, and we stand by this.''
\17\
---------------------------------------------------------------------------
\17\ 23-Jun-2015, Roll call vote on HR 805, at http://
clerk.house.gov/evs/2015/roll377.xml
---------------------------------------------------------------------------
Many in the CCWG were not content to rely upon a verbal promise
made by a CEO, so we sought further assurance of a continued U.S.
presence in ICANN's bylaws and articles of incorporation. We noted this
commitment is already part of ICANN bylaws Article XVIII:
``OFFICES. The principal office for the transaction of the
business of ICANN shall be in the County of Los Angeles, State
of California, United States of America. ICANN may also have an
additional office or offices within or outside the United
States of America as it may from time to time establish.''
While ICANN's board could propose a change to this bylaws
provision, the empowered community could block the proposed change,
using one of its new community powers. In addition, ICANN's Articles of
Incorporation already state that ICANN ``is organized under California
Nonprofit Public Benefit Corporation Law'' \18\. The CCWG proposal
amends ICANN's Articles of Incorporation such that any change would
require a 75 percent majority of the empowered community.
---------------------------------------------------------------------------
\18\ Section 3 of ICANN Articles of Incorporation, at https://
www.icann.org/resources/pages/governance/articles-en
---------------------------------------------------------------------------
These two foundational documents are sufficient assurance that
ICANN will continue to maintain principal offices and a legal presence
in the U.S.
5.2 The post-transition ICANN will not see an increase in the power of
governments
Governments have influence on ICANN policy development and contract
compliance via their collective participation in the Governmental
Advisory Committee (GAC). The GAC was established when the U.S.
Commerce Department and American private sector interests first created
ICANN in 1998:\19\
---------------------------------------------------------------------------
\19\ 6-Nov-1998, Bylaws for ICANN, at https://www.icann.org/
resources/unthemed-pages/bylaws-1998-11-06-en
The Governmental Advisory Committee should consider and provide
advice on the activities of the Corporation as they relate to
concerns of governments, particularly matters where there may
be an interaction between the Corporation's policies and
---------------------------------------------------------------------------
various laws, and international agreements.
The GAC has gradually grown in its effectiveness to and its advice
to ICANN has grown in importance, as seen with policies adopted for the
latest expansion of new top-level domains.
In our previous Congressional testimony, I described a stress test
where governments could significantly raise their influence via GAC
formal advice:\20\
---------------------------------------------------------------------------
\20\ See Stress Tests 6 & 7, on p. 9 at NetChoice Testimony before
the House Energy & Commerce Committee--Ensuring the Security,
Stability, Resilience, and Freedom of the Global Internet, 2-Apr-2014
Stress Test #18 is related to a scenario where ICANN's GAC
would amend its operating procedures to change from consensus
---------------------------------------------------------------------------
decisions to majority voting for advice to the ICANN Board.
Since the ICANN Board must seek a mutually acceptable solution
if it rejects GAC advice, concerns were raised that the Board
could be forced to arbitrate among sovereign governments if
they were divided in their support for the GAC advice. In
addition, if the GAC lowered its decision threshold while also
participating in the Empowered Community, some stakeholders
believe this could inappropriately increase government
influence over ICANN.\21\
---------------------------------------------------------------------------
\21\ pp. 2-3, Annex 11--Recommendation #11: Board Obligations with
Regard to Governmental Advisory Committee Advice (Stress Test #18), at
https://www.icann.org/en/system/files/files/ccwg-accountability-supp-
proposal-work-stream-1-recs-23feb16-en.pdf
Several governments had previously voiced dissatisfaction with the
present consensus rule for GAC decisions, so it is plausible that the
GAC could change its method of approving advice at some point, such
that a majority could prevail over a significant minority of
governments. Early on, NTIA said that addressing Stress Test 18 was
required for the transition:\22\
---------------------------------------------------------------------------
\22\ E-mail from Suzanne Radell, Senior Policy Advisor, NTIA, 19-
Mar-2015, at http://mm.icann.org/pipermail/accountability-cross-
community/2015-March/001711.html
As a threshold matter, the USG considers the stress test both
appropriate and necessary to meet the requirement that the IANA
transition should not yield a government-led or an
intergovernmental replacement for NTIA's current stewardship
---------------------------------------------------------------------------
role.
Finally, we interpret the proposed stress test as capturing
this important distinction in GAC advice, with an appropriate
remedy in the form of a Bylaws amendment to reinforce the ICANN
community's expectation that anything less than consensus is
not advice that triggers the Bylaw provisions.
In response, the new bylaws would enshrine the GAC's present full-
consensus rule as the only way to trigger the board's obligation to
``try and find a mutually acceptable solution.'' Several GAC members
fiercely resisted this change, saying it interfered with government
decision-making and reduced the role of governments. To overcome some
of that resistance, we raised the threshold for ICANN's board to reject
GAC's full-consensus advice, from today's simple majority (9 votes) to
60 percent (10 votes).
This brings to mind your Feb-2015 hearing, where Senator Fischer
asked ICANN CEO Fadi Chehade about a proposal to raise the rejection
threshold to 2/3 of board votes. Chehade replied, ``The Board has
looked at that matter and has pushed it back, so it is off the table.''
It's true that a standalone proposal to raise the GAC rejection
threshold was broadly opposed and set aside in late 2014. However, the
proposed bylaw to increase the rejection threshold to 60 percent (1
additional vote) is an entirely different arrangement, since it
reserves the higher threshold only for GAC advice adopted ``by general
agreement in the absence of any formal objection''. This requirement
prevents the GAC from generating privileged advice based on anything
less than consensus, and more than justifies the addition of 1 more
vote to reject that advice.
If the board rejects GAC advice, it must still follow existing
bylaws to ``try, in good faith and in a timely and efficient manner, to
find a mutually acceptable solution.'' This is an obligation to ``try''
and does not oblige ICANN to find a solution that is acceptable to the
GAC.
Another imposition on GAC advice is a requirement that advice ``is
communicated in a clear and unambiguous written statement, including
the rationale for such advice.'' \23\ And if ICANN's board accepted GAC
advice that is inconsistent with ICANN Bylaws, the community can invoke
the independent review process (IRP) to ``ensure that ICANN does not
exceed the scope of its limited technical Mission and otherwise
complies with its Articles of Incorporation and Bylaws.'' \24\
---------------------------------------------------------------------------
\23\ 20-Apr-2016, Section 12.3 of Draft New ICANN Bylaws, at
https://www.icann.org/en/system/files/files/proposed-new-bylaws-
20apr16-en.pdf
\24\ Ibid, Section 4.3 a
---------------------------------------------------------------------------
As one of the 7 Advisory Committees and Supporting Organizations
that comprise the ICANN community, GAC was also invited to participate
as a decisional participant of the Empowered Community. A few critics
say that we should have excluded GAC from the community, but I cannot
imagine that Congress or the Administration would accept an
accountability structure where governments--including the U.S.--have no
seat at the table. National, state, and local governments maintain
websites and services as domain name registrants, and many government
employees are Internet users. Moreover, governments have a role among
all stakeholders in developing public policy and enforcing laws that
are relevant to the Internet.
While GAC is rightfully an equal among ICANN stakeholders, the new
bylaws ensure that governments could not block a community challenge of
ICANN Board's implementation of GAC advice. In what is known as the
``GAC Carve-out'', the bylaws exclude the GAC from the community
decision whether to challenge a board action based on GAC consensus
advice. Several governments vigorously oppose these bylaws provisions
to limit GAC influence and lock-in their consensus method of decision-
making. In a statement issued Mar-2016, France's minister for digital
economy complained about ICANN's new bylaws:\25\
---------------------------------------------------------------------------
\25\ 24-Mar-2016, ``French scream sacre bleu! as U.S. govt gives up
the Internet to ICANN'', at http://www.theregister.co.uk/2016/03/24/
france_slams_us_govt_internet_transition/
``Despite the continued efforts of civil society and many
governments to reach a balanced compromise, elements of this
reform project will marginalize states in the decision-making
processes of ICANN, especially compared to the role of the
---------------------------------------------------------------------------
private sector.''
Unnamed French foreign ministry officials also told Le Monde
they were unhappy with the end result, saying: ``This is an
unsatisfactory condition. The consensus requirement only
produces warm water. And that does not put the GAC on the same
footing as the other committees of ICANN.''
The French official is right--the GAC is not on the same footing as
other ICANN stakeholders. That, however, is by design. Notwithstanding
criticism from certain governments, the full package of transition
accountability measures sufficiently cabins governmental influence and
fully meets NTIA's conditions for the transition.
5.3 The Affirmation of Commitments is being added to ICANN bylaws
The first stress test that we proposed to Congress was where ICANN
decides to quit the Affirmation of Commitments, a bilateral agreement
with the U.S. that either party may terminate with 120 days notice.\26\
Once the IANA contract is gone, ICANN could quit the Affirmation
without fear of losing its control over IANA functions. Even if ICANN
wanted to retain the Affirmation after transition, that agreement would
be targeted for elimination by governments who resent the U.S. having a
unique, bilateral relationship with ICANN.
---------------------------------------------------------------------------
\26\ See Stress Test 1, on page 8 at NetChoice Testimony before the
House Energy & Commerce Committee, Subcommittee on Communications and
Technology--Ensuring the Security, Stability, Resilience, and Freedom
of the Global Internet, 2-Apr-2014
---------------------------------------------------------------------------
In your Feb-2015 hearing, members of this committee suggested
making Affirmation obligations permanent. At the same time, the CCWG
examined Affirmation items to determine which were already in ICANN
bylaws, and proposed adding key Affirmation commitments to ICANN
bylaws--including the 4 periodic community reviews:
ICANN's accountability & transparency
Preserving security, stability and resiliency
Promoting competition, consumer trust, and consumer choice
The extent to which WHOIS services meet legitimate needs of law
enforcement
Now, these reviews will be part of ICANN bylaws, enhanced to give
the community access to ICANN internal documents and control over
review team composition. In addition, the IANA stewardship group
proposed an IANA Functions Review be added to the bylaws.
When combined with new powers to challenge ICANN board decisions,
these bylaws changes would enable termination of the Affirmation of
Commitments. The CCWG concluded that the Affirmation should be
terminated to avoid having a side agreement different from the new
bylaws, and to eliminate a bilateral agreement with the U.S. that would
become a target for critics of a unique U.S. Government role in ICANN
oversight.\27\
---------------------------------------------------------------------------
\27\ p. 6, Annex 9--Recommendation #9: Incorporating the
Affirmation of Commitments in ICANN's Bylaws, at https://www.icann.org/
en/system/files/files/ccwg-accountability-supp-proposal-work-stream-1-
recs-23feb16-en.pdf
---------------------------------------------------------------------------
5.4 The post-transition ICANN would not increase government censorship
of online content
As noted in section 4 above, Senators Cruz, Lankford, and Lee wrote
to ICANN's chairman this year about his CEO's engagement with the
Chinese government and China's latest regulatory restrictions on
domestic Internet domain name registrations. The response from ICANN
asserted that the CEO's personal engagement with a Chinese conference
was not related to his role as CEO, and said that ICANN's engagement
with China ``does not suggest any level of support for the Nation's
government or its policies.'' \28\
---------------------------------------------------------------------------
\28\ 6-Apr-2016, Response from ICANN to Senators Cruz, Lee, and
Lankford, at https://www.icann.org/en/system/files/correspondence/
crocker-to-cruz-lankford-lee-06apr16-en.pdf
---------------------------------------------------------------------------
However, recent moves by the Chinese government to regulate domain
name registrations remains troubling to NetChoice members, since it
could lead to fragmentation of the global Internet and isolation of
China's citizens and businesses. The Senators are right to be concerned
about this, and a post this week by NTIA's Larry Strickling and
Ambassador Danny Sepulveda echoes those same concerns:\29\
---------------------------------------------------------------------------
\29\ 16-May-2016, Lawrence Strickling and Daniel Sepulveda,
``China's Internet Domain Name Measures and the Digital Economy'', at:
https://blogs.state.gov/stories/2016/05/16/china-s-internet-domain-
name-measures-and-digital-economy
If left unchanged, China's regulations would undermine some of
the most fundamental aspects of the Internet--openness,
reliability, and interoperability--within China. By creating
its own rules for domain name management, China is threatening
to fragment the Internet, which would limit the Internet's
ability to operate as a global platform for human
---------------------------------------------------------------------------
communication, commerce, and creativity.
However troubling the Chinese government's recent moves may be,
they are not an attempt to take control of ICANN or the global domain
name system. The Chinese government's move to control domain
registrations by Chinese nationals is part of its larger effort to
control what reaches or originates from its citizens. It may also be
driven by a desire to reduce online fraud and abuse among several
hundred million Chinese Internet users, many of whom are going online
for the first time.
Fortunately, the Chinese government's censorship regime works only
at the edge of the Internet, where online traffic enters networks
within China's physical borders. Neither China nor other governments
can extend censorship to the core of the global Internet, so long as
our multistakeholder community controls ICANN policy development and
holds ICANN accountable for its actions.
Our transition proposal does not help China--or any other
government--to extend censorship to the root of the DNS. In fact, we
have new powers to challenge board implementation of GAC advice that
exceeds our new--and narrower--mission for ICANN. The new bylaws
explicitly limit ICANN's ability to impose restrictions on content or
conduct:\30\
---------------------------------------------------------------------------
\30\ 20-Apr-2016, ICANN Draft new Bylaws, at https://www.icann.org/
en/system/files/files/proposed-new-bylaws-20apr16-en.pdf
ICANN shall not regulate (i.e., impose rules and restrictions
on) services that use the Internet's unique identifiers or the
content that such services carry or provide, outside the
express scope of Section 1.1(a). For the avoidance of doubt,
ICANN does not hold any governmentally authorized regulatory
---------------------------------------------------------------------------
authority.
Authoritarian regimes don't want the IANA transition to succeed.
This transition empowers the private sector, civil society, and
technologists--not governments--to take the reins over the global
Internet. As one noted China cyber expert put it, this is a development
that would dramatically undermine the authoritarians' arguments that
only governments can truly manage something as powerful as the
Internet.\31\ We know this to be false, because of the incredible role
that stakeholders from around the world have played for decades in
keeping the global Internet safe and running smoothly.
---------------------------------------------------------------------------
\31\ Adam Segal, ``The Hacked World Order'', (PublicAffairs, 2016)
at 220.
---------------------------------------------------------------------------
But in the face of these threats to fragment the global Internet,
it's more important than ever to ensure that the innovators and
entrepreneurs who have always been responsible for growing and
protecting the Internet remain at the helm, free from undue government
influence. The transition plan we are here to discuss will do precisely
that.
5.5 At this point, a significant delay in this transition could create
far more risks than rewards for the interests of U.S.
Government, businesses, and citizens
As noted in section 4, Senators on the committee circulated letters
last week indicating reasons to delay the transition beyond the IANA
contract expiration on 30-Sep-2016. We acknowledge that a modest delay
could give more time to complete remaining implementation tasks and
verify promised implementation by the ICANN Board. But an extended
delay would create more risks and no significant benefits from the
perspective of the U.S. Government, businesses, and citizens.
First, Sen. Rubio wrote that the proposal ``would create a
radically different governance structure for ICANN''. While it is true
that the proposed new governance structure is somewhat complicated, it
is rooted in California law to give legal powers to the community. This
is the same kind of accountability typically used by shareholders,
association members, and voters. Moreover, the newly empowered
community would invoke these new accountability powers only if ICANN's
board ignored community consensus in its pursuit of a budget, a bylaws
change, or a policy action. The mere existence of these new community
powers will diminish the board's appetite to confront a united
community of disgruntled Internet stakeholders.
Second, Senators raise concern ``about the expanded role of
governments''. That concern could reasonably arise from looking in
isolation at the GAC's status as multi-equal stakeholder in the
empowered community. But as noted in section 5.3 above, the net effect
of transition changes does not increase the influence of governments
over ICANN activities. This is also evident in the complaints of
France, Brazil, and other GAC members who believe their influence is
being reduced in favor of other ICANN stakeholder groups.
Third, Senators Cruz, Lankford, and Lee worry that the CCWG
proposal could commit ICANN to potentially troubling enforcement
obligations for human rights. NetChoice shared this concern with the
first draft of Bylaws regarding the Work Stream 2 framework on human
rights, so we support this amended Bylaw text:
(viii) Subject to the limitations set forth in Section 27.3,
within the scope of its Mission and other Core Values,
respecting internationally recognized human rights as required
by applicable law. This Core Value does not create, and shall
not be interpreted to create, any obligation on ICANN outside
its Mission, or beyond obligations found in applicable law.
This Core Value does not obligate ICANN to enforce its human
rights obligations, or the human rights obligations of other
parties, against such other parties.
This proposed bylaws text would make it clear that ICANN will not
become embroiled in enforcement of claims related to human rights, and
should address the Senators' concern.
Fourth, Sen. Rubio and others observe that there are ``details of
the proposal that have yet to be developed'', referring specifically to
Work Stream 2 elements such as transparency improvements and a new
framework for respecting human rights. Actually, there are several
additional tasks in Work Stream 2, which will take the CCWG well into
mid-2017 to complete.
However, the whole point of separating Work Stream 1 and 2 tasks
was to identify what had to be implemented before the IANA contract
expired, after which there would be very little leverage to force
accountability measures that would be resisted by ICANN's board. Work
Stream 1 includes new powers to block the board's budget, overturn a
board decision, and to recall board directors. Those powers are deemed
sufficient to force a future ICANN board to accept Work Stream 2
changes that are developed though community consensus.
In other words, ICANN's new bylaws give the Empowered Community new
powers to implement further reforms at any time. So the only way to
evaluate all changes the community might pursue in the future is to
delay the transition indefinitely.
A long-term delay of transition would re-kindle the fire at the
United Nations, where many governments have cited the U.S. Government
role as the sole supervisor of ICANN and the IANA functions as an
excuse to gain more control over the Internet for themselves. With this
transition we are eliminating the role where one government holds ICANN
accountable, by moving to a structure where ICANN is accountable to a
broad community of Internet stakeholders. After transition, the U.N.
and ITU can no longer point to the U.S. Government role and say they
should step into those shoes.
Finally, an extended delay of transition would signal that the U.S.
Government does not actually trust the multistakeholder model that we
are encouraging China and other governments to trust. China's
government would surely note our hypocrisy for criticizing them for
failing to embrace domain registration policies developed by ICANN's
multistakeholder community.
6. Conclusion
This transition is the best opportunity to pursue difficult but
necessary reforms to ensure that ICANN is accountable to the community
it was created to serve.
It's imperative to empower the Internet community to challenge
ICANN decisions on situations that will arise in the decades ahead. The
new Bylaws provide direct court enforcement for community's statutory
power to remove an individual director or to recall the entire ICANN
board.\32\ And if the community wins in an independent review process
(IRP) and the ICANN board does not comply with the IRP decision, the
community can petition a court to enforce the result of the IRP. For
all other community powers, the recourse is to recall the entire ICANN
board, which is also enforceable in court.
---------------------------------------------------------------------------
\32\ p. 9, Annex 02--Recommendation #2: Empowering the Community
through Consensus, at https://www.icann.org/en/system/files/files/ccwg-
accountability-supp-proposal-work-stream-1-recs-23feb16-en.pdf
---------------------------------------------------------------------------
The global Internet community has devoted thousands of hours
developing this proposal and bylaws, and is facing additional effort on
Work Stream 2 enhancements. We are therefore grateful that this
committee approved legislation insisting that NTIA require ICANN to
adopt the multistakeholder community proposals as a condition of the
IANA transition. Your strong support helped us persuade ICANN's board
to commit to adopt bylaws changes required by the community proposal--
regardless of when this proposal works its way through Washington.
To prepare ICANN for a future independent of U.S. Government
contracts, the Internet community needs to hold ICANN accountable, with
powers like shareholders have over corporations; voters over their
elected officials; and members over their trade associations. This
transition can realize the White Paper vision for an ICANN that is led
by, and accountable to its multistakeholder communities, including the
private sector; civil society; and technology experts--along with a
limited role for governments. Together, we can bring connectivity,
content, and commerce to the next billion global Internet users and to
future generations of Americans.
Annex--United States government stewardship of ICANN and IANA
American engineers came up with a ``recipe'' for core Internet
technologies and promptly gave that recipe to the world. Internet hosts
were appearing internationally by the 1980s. The 1990s saw the
explosion of commercial uses of the Internet, based on a naming and
numbering system also created in the United States. In 1998, the
Clinton administration sought to privatize and internationalize the
Domain Name System (DNS) with this directive in the White Paper:
The President directed the Secretary of Commerce to privatize
the Domain Name System in a way that increases competition and
facilitates international participation in its management.
The U.S. Government is committed to a transition that will
allow the private sector to take leadership for DNS
management.\33\
---------------------------------------------------------------------------
\33\ The ``White Paper'' on Management of Internet Names and
Addresses, U.S. Department of Commerce, Jun-1998, see http://
www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm
In the 18 years since, it's been a long road from American
invention to internationalized private-sector leadership by an entity
the U.S. established for the task: the Internet Corporation for
Assigned Names and Numbers (ICANN). Three administrations and several
Congresses have worked to help ICANN mature and protect the vision of
private-sector leadership from growing pressure for control by
governments, who saw the growth of the Internet and assumed that its
governance required an inter-governmental solution.
The transition to an independent ICANN was expected to take a few
years, but the National Telecommunications and Information
Administration (NTIA) made several extensions of its oversight
arrangements, the latest of which expired in September 2009. At the
time, NetChoice was among those calling for another extension so that
ICANN could develop permanent accountability mechanisms.
Instead, NTIA and ICANN unveiled a new agreement, the Affirmation
of Commitments. \34\ The Affirmation established periodic reviews
giving all stakeholders--including governments--a defined oversight
role in assessing ICANN's performance. The Affirmation gave the global
Internet community what was promised: independence for ICANN in a
framework where governments were alongside private sector stakeholders.
---------------------------------------------------------------------------
\34\ Affirmation of Commitments, 2009, http://icann.org/en/
documents/affirmation-of-commitments-30sep09-en.htm
---------------------------------------------------------------------------
But concerns about the U.S. role in naming and numbering remained
after the execution of the Affirmation, because NTIA retained its
contracting role for the Internet Assigned Numbers Authority (IANA).
The IANA contract is deemed essential to ICANN and therefore provided
NTIA leverage to hold ICANN to its Affirmation obligations.
However, ICANN can quit the Affirmation with just 120 days notice.
And within a year of signing, ICANN's then-chairman told a group of
European parliamentarians that he saw the Affirmation as a temporary
arrangement ICANN would like to eventually terminate.\35\
---------------------------------------------------------------------------
\35\ Peter Dengate Thrush, in response to a question from Steve
DelBianco, at event hosted by European Internet Foundation in Brussels,
June 22, 2010.
---------------------------------------------------------------------------
All of this to say that ICANN needs a persistent and powerful
reminder that it serves at the pleasure of global stakeholders; that
ICANN has no permanent lock on managing the Internet's name and address
system. We said at the time that ICANN's role in IANA functions should
disappear if it were to walk away from the Affirmation of Commitments.
Since the U.N. created the Internet Governance Forum (IGF) in 2005,
IGF meetings have become increasingly productive, yet some governments
still want the U.N. to oversee DNS tasks handled by ICANN and IANA. In
its July-2010 statement to the U.N., China's government asked the U.N.
and IGF to ``solve the issue of unilateral control of the Critical
Internet Resources.'' By ``unilateral control'', China means U.S.
custody of the IANA contract. And ``Critical Internet Resources''
include IP addresses, root servers, and the policymaking for domain
names.
China was not alone in its desire for the migration of ICANN and
IANA functions to the U.N.'s International Telecommunication Union
(ITU). ITU leadership did not like a model where governments share
power with industry and civil society, and warned ICANN that sooner or
later governments would take greater control of the organization.
In 2011, a group of governments proposed their own replacement for
U.S. oversight and ICANN's model of private sector leadership. India,
Brazil, and South Africa declared it was time for ``establishing a new
global body'' located ``within the U.N. system'' to ``oversee the
bodies responsible for technical and operational functioning of the
Internet.'' \36\ In contrast, both houses of Congress unanimously
affirmed a resolution in 2012 stating, ``the consistent and unequivocal
policy of the United States to promote a global Internet free from
government control and preserve and advance the successful
multistakeholder model that governs the Internet today.'' \37\
---------------------------------------------------------------------------
\36\ Recommendations of IBSA Multistakeholder meeting on Global
Internet Governance, September 2011, at http://www.culturalivre.org.br/
artigos/IBSA_recommendations_Internet_
Governance.pdf
\37\ H.Con.Res.127 and S.Con.Res.50--Expressing the sense of
Congress regarding actions to preserve and advance the multistakeholder
governance model under which the Internet has thrived, Aug 20, 2012
---------------------------------------------------------------------------
The diagram below shows the multiple contractual ties and
connections between ICANN and its global stakeholders.
Clearly, the last 18 years of ``transition'' have seen significant
improvements in globalizing ICANN and IANA, although there have
certainly been some challenges. Along the way, some governments and
intergovernmental organizations have criticized the U.S. role and
openly coveted taking over that role. But throughout, the U.S. Congress
and multiple administrations have stayed with the vision of
multistakeholder, private-sector leadership for Internet addressing and
policymaking. And our government has used its contractual tools to
improve ICANN's performance and to hold the organization to the
accountability measures in the Affirmation of Commitments.
Still, the U.S. continued to work towards full privatization of
ICANN and IANA, at a deliberate pace and with measurable progress. Then
came 2013 and Edward Snowden's revelations of U.S. Government
surveillance. While not unique to the U.S. and entirely unrelated to
ICANN and the IANA functions, Snowden stoked international concerns
that led to the administration's decision to relinquish the remaining
tether of ICANN accountability to the U.S.--the IANA functions
contract.
Ensuring that ICANN accepts and implements the community proposals
In September 2014, all ICANN advisory committees and stakeholder
groups wrote a joint letter raising questions about ICANN's proposed
accountability process.\38\ ICANN responded by asking whether and why
the community seemed to lack trust in ICANN's board and management. The
Business Constituency's reply is remarkable for its clarity on why the
community needs new measures to hold ICANN accountable:\39\
---------------------------------------------------------------------------
\38\ Joint questions, https://www.icann.org/en/system/files/
correspondence/cooper-et-al-to-che
hade-crocker-03sep14-en.pdf
\39\ p. 3, Business Constituency comment on Enhancing ICANN
Accountability Process, 27-Sep-2014, at http://www.bizconst.org/wp-
content/uploads/2014/09/BC-comment-on-Enhancing-ICANN-Accountability-
Process.pdf
First, this discussion is not about whether the community
``trusts'' the current ICANN board. It's about trusting future
boards--after we no longer have the leverage/influence of the
U.S. Government to rely upon. This IANA transition is the
community's chance to establish mechanisms to rein-in a future
board that would put ICANN's corporate interests ahead of the
community. We are not suggesting that a future board would do
so. Rather, we are acknowledging that the board is obliged to
protect the corporation's interests first, as required by ICANN
---------------------------------------------------------------------------
bylaws:
Section 7: Directors shall serve as individuals who
have the duty to act in what they reasonably believe
are the best interests of ICANN and not as
representatives of the entity that selected them.
Should there be any confusion about whether the bylaws refer to
``ICANN'' as the corporation or the community, see ICANN's
Management Operating Principles (2008):
``The third and perhaps most critical point of tension
is between the accountability to the participating
community to perform functions in keeping with the
expectations of the community and the corporate and
legal responsibilities of the Board to meet its
fiduciary obligations. The ultimate legal
accountability of the organization lies with the Board,
not with the individuals and entities that make up the
ICANN community.'' \40\
---------------------------------------------------------------------------
\40\ ICANN Accountability & Transparency Frameworks and Principles,
Jan-2008, p.5, at https://www.icann.org/en/system/files/files/acct-
trans-frameworks-principles-10jan08-en.pdf
The Business Constituency had it right: ICANN's present bylaws do
not hold the board accountable to the community. Before the U.S.
Government lets go of the oversight leverage inherent in the IANA
contract, it must ensure that ICANN accepts and implements the
proposals needed to keep the ICANN corporation accountable to the
---------------------------------------------------------------------------
global multistakeholder community that ICANN was created to serve.
The Chairman. Thank you, Mr. DelBianco.
Mr. Gross?
STATEMENT OF HON. DAVID A. GROSS, FORMER
U.S. COORDINATOR FOR INTERNATIONAL COMMUNICATIONS
AND INFORMATION POLICY, U.S. STATE DEPARTMENT
Ambassador Gross. Thank you very much, Mr. Chairman,
members of the Committee. Good morning, and thank you very much
for the opportunity to testify before you today.
My name is David Gross. Formerly, I had the great honor of
serving the United States in the Department of State as the
U.S. Coordinator for International Communications and
Information Policy from 2001 until 2009. During that time, I
led the United States delegations to the preparatory meetings
and was the co-head of the U.S. delegations to both phases of
the World Summit on the Information Society, WSIS, that was
held by the United Nations in Geneva in 2003 and in Tunis in
2005.
WSIS, among other things, focused on the role of
governments regarding Internet governance and resulted in the
creation of the Internet Governance Forum, the IGF. Today, I am
appearing on behalf of the Internet Governance Coalition, an
industry-led coalition with broad representation from the
communications, Internet, and related industries.
The Internet Governance Coalition is pleased to testify on
the important developments in the process of the transition of
key Internet domain name functions to the global
multistakeholder community, commenced by NTIA more than 2 years
ago. The transition package, including the accountability
proposals, created by the global Internet community is an
important milestone for the multistakeholder model of Internet
governance and for the Internet as a whole.
The progress that has been made regarding these issues is
the result of more than 2 years of hard work by many people and
organizations, demonstrating that even complex and difficult
Internet related issues can be resolved successfully through
bottom-up, community-driven processes. Since the United States
has long been the champion of the multistakeholder process for
resolving Internet governance related issues, this success is
very good news for America.
Our review of the IANA Stewardship Transition Plan is
rooted in the principles laid out by NTIA at the commencement
of this process in March 2014. Recognizing that the U.S.
Government must still make its careful assessment of the
proposals and their implementation, and recognizing that there
are constructive suggestions for further improvements that were
recently made, we believe that the process set forth by NTIA
and the transition itself will ensure the ongoing stability and
reliability of the Internet.
Importantly, we are encouraged that, to date, the
multistakeholder process has worked well and has enabled
companies, technologists, members of the civil society, and
users to be heard loud and clear. Importantly, this success
should be viewed as illustrating the benefits of the policies
associated with the elimination of unnecessary governmental
involvement in the operation of the technical aspects of the
Internet.
Of course, the completion of the IANA stewardship
transition will not be the end of the road. But the question is
not whether the challenges will emerge. It is whether the
multistakeholder community is robust and resilient enough to
deal with those challenges and to help shape Internet policies
worldwide. Simply put, it is. So the companies represented by
the Internet Governance Coalition not only will stay engaged
with the implementation of the IANA transition but also will
remain vigilant in monitoring and participating in Internet
governance discussions as they arise in other fora, as they
most certainly will.
Thank you very much, and I look forward to answering your
questions.
[The prepared statement of Ambassador Gross follows:]
Prepared Statement of Ambassador David A. Gross, former Coordinator for
International Communications and Information Policy, U.S. Department of
State
Summary
The Internet Governance Coalition is pleased to testify on the
important developments in the process to transition key Internet domain
name functions to the global multistakeholder community, commenced by
NTIA more than two years ago. The transition package, including the
accountability proposals, created by the global Internet community is
an important milestone for the multistakeholder model of Internet
governance and for the Internet as a whole. The progress that has been
made regarding these issues is the result of more than two years of
hard work by many people and organizations, demonstrating that even
complex and difficult Internet-related issues can be resolved
successfully through bottom-up, community-driven processes. Since the
United States has long been the champion of the multistakeholder
process for resolving Internet governance-related issues, this success
is very good news for America.
Our review of the IANA Stewardship Transition Plan is rooted in the
principles laid out by NTIA at the commencement of this process in
March 2014. Recognizing that the U.S. Government still must make its
careful assessment of the proposals and their implementation, and
recognizing there are constructive suggestions for further
improvements, we believe that the process set forth by NTIA, and the
transition itself, will ensure the ongoing stability and reliability of
the Internet. Importantly, we are encouraged that to date the
multistakeholder process has worked well and has enabled the companies,
technologists, members of civil society, and users to be heard loud and
clear. This success should be viewed as illustrating the benefits of
policies associated with the elimination of unnecessary government
involvement in the operation of the technical aspects of the Internet.
Of course, the potential completion of the IANA Stewardship
Transition will not be the end of the road. But the question is not
whether challenges will emerge; it is whether the multistakeholder
community is robust and resilient enough to deal with those challenges
and to help shape Internet policies worldwide. Simply put, it is. So
the companies represented by the Internet Governance Coalition not only
will stay engaged with the implementation of the IANA transition, but
also will remain vigilant in monitoring and participating in Internet
governance discussions as they arise in other fora.
______
Chairman, Ranking Member, Members of the Committee, good morning
and thank you for the opportunity to testify before you today.
My name is David A. Gross. Formerly, I had the great honor of
serving in the Department of State as the United States Coordinator for
International Communications and Information Policy from 2001 to 2009.
During this time, I led the United States delegations to the
preparatory meetings and I was the co-head of the United States
delegations to both phases of the United Nations' World Summit on the
Information Society (WSIS) in Geneva (2003) and Tunis (2005), which,
among other things, focused on the role of governments regarding
Internet governance and resulted in the creation of the Internet
Governance Forum (IGF). Today I am appearing on behalf of the Internet
Governance Coalition, an industry-led coalition with broad
representation from the communications, Internet, and related
industries, including AT&T, Inc., Cisco Systems, Inc., Comcast
NBCUniversal, Facebook, GoDaddy, Google Inc., Juniper Networks Inc.,
Microsoft Corporation, Telefonica, S.A., The Walt Disney Company, Time
Warner Cable Inc., Twenty-First Century Fox Inc., and Verizon
Communications Inc.
I am pleased to appear before this Committee to testify regarding
the important developments in the process of transitioning key Internet
domain name functions to the global multistakeholder community. The
National Telecommunications and Information Administration's (NTIA)
decision to initiate a process leading to the possible transition of
the Internet Assigned Numbers Authority (IANA) functions contract to a
multistakeholder entity is a critical step toward bringing the economic
and societal benefits of the Internet to everyone.
The ICANN Board has taken several important steps to implement the
transition, including approving a plan for transitioning control of the
IANA functions to the multistakeholder community, and related
accountability proposals. That transition package was forwarded to NTIA
for review. Last month, the Board also issued draft amended bylaws
designed to implement the recommendations in the transition package.
The ICANN Board accepted public comments on the draft amended bylaws
from April 21 to May 21, which prompted some constructive suggestions
for ensuring the bylaws appropriately adhere to the recommendations of
the IANA Stewardship Transition Plan. Should the ICANN Board vote to
adopt revised bylaws, NTIA will have the entire transition package and
be in a position to conclude its assessment. If the transition package
is adopted and approved, it will be because of the more than two years
of hard work performed by diverse people and organizations,
demonstrating that even complex and difficult Internet-related issues
can be resolved successfully through a multistakeholder process.
The Coalition believes that a thriving Internet depends on a
governance structure that is open, transparent, and representative of
all stakeholders. The current multistakeholder model for Internet
governance facilitated the historic Internet-driven economic, social,
and political development of the past two decades. The decentralized
structure of the Internet enabled individuals to access information and
services, to connect and to communicate, and to share ideas and
knowledge globally. By offering new possibilities for entrepreneurial
creativity, the Internet became a powerful engine for unparalleled
technological innovation, economic growth and the preservation and
promotion of cultural diversity.
Too much government oversight, however, potentially can place these
important benefits in jeopardy by hampering innovation and
technological development and threatening Internet growth. United
States Government oversight of the IANA functions has been a long-
standing concern of many in the global community. Yet, in carefully
transitioning the IANA functions to a bottom-up multistakeholder
entity, the United States is addressing these concerns while
simultaneously promoting its core values by affirming our Nation's
commitment to the multistakeholder model. Those core values have, at
their heart, the strong belief that no other government or
intergovernmental entity should be able to control ICANN. Indeed, the
U.S. Government's role vis-a-vis ICANN has always belied the reality
that companies, technologists, members of civil society, and users--not
governments in general, nor the U.S. Government in particular--have
been primarily responsible for ensuring that the Internet's technical
functions continue to drive economic and social opportunities around
the world. The IANA Transition ensures that this reality is now
reflected in the bylaws and procedures governing ICANN. Done properly,
the IANA Transition should help to unleash the private sector and
others toward greater innovation and improved Internet connectivity and
services, all without unnecessary government involvement.
After the transition, the United States is expected to continue to
participate actively in the Government Advisory Committee (GAC), one of
the important stakeholder constituencies in the multistakeholder model.
Accordingly, after the IANA Transition, U.S. interests will continue to
be well-represented--an outcome that is good for America and good for
the global Internet community.
By ensuring that the principles NTIA identified for the transition
are met--which are critical conditions for this process to work
successfully--the United States will succeed in creating an environment
to maintain the freedom, openness, security, and stability of the
Internet we have all enjoyed since its inception. Of course, robust
accountability and transparency mechanisms are necessary to ensure
future stability in the absence of NTIA's current role, and these
additional mechanisms, contained in the new accountability proposal
approved by the ICANN Board, must be in place prior to or simultaneous
with the transition.
As this Committee knows from prior testimony, the Coalition
supported NTIA's assurance that an acceptable transitional proposal
must:
Support and enhance the multistakeholder model;
Maintain the security, stability, and resiliency of the
Internet DNS;
Meet the needs and expectation of the global customers and
partners of the IANA services; and,
Maintain the openness of the Internet.
These principles, together with NTIA's critically important,
explicit commitment not to accept any plan that could replace its role
with a government-led or an inter-governmental organization, are
consistent with the Coalition's own policy principles, which also have
been the basis of its advocacy before the United Nations, the
International Telecommunication Union (ITU), and elsewhere.
The importance of the Internet to U.S. and global businesses, and
its social and cultural centrality to people around the world, cannot
be overstated. Accordingly, we need to preserve the stability and
reliability of the Internet, in terms of both technical decision making
and policy making. Changes in the processes of Internet governance--
which have helped shape the historic growth of the Internet economy,
and the immense benefits that it has brought--are of great interest and
concern to the Internet Governance Coalition. That is why, although the
Coalition itself has not been directly involved in the process of
developing the stewardship transition plan and accountability
proposals, some Coalition member companies have taken an active role
and the Coalition has monitored the processes and has been diligent in
its review of the outcomes.
In these various fora, the Internet Governance Coalition has
stressed that we all--governments, the private sector, civil society,
technologists, users, and others--must join together to ensure a safe,
secure, open, interoperable, and global Internet as the underlying
foundation for sustainable economic and social development. This means
promoting policies that stimulate continued investment in, deployment
of, and access to Internet networks and the industries and services
that create demand for those networks. It also means continuing to
support capacity building and assistance on implementation of network
security best practices, especially in the developing world.
Policies must support opening and maintaining international markets
allowing the seamless flow of legal digital services, applications,
products and information. Any actions taken should foster innovation
and investment across Internet networks, services, and other sectors of
the Internet ecosystem. This includes ensuring both the enhancement of
human rights and the protection of intellectual property. Governments
can advance these goals by establishing even-handedness and
predictability in decision-making, while at the same time encouraging
reduced direct Internet oversight and control.
Finally, the Internet Governance Coalition believes in increased
and appropriate transparency and openness in intergovernmental
organizations and multistakeholder mechanisms, to ensure that all
stakeholders can participate meaningfully in key Internet policy
discussions. The quality of Internet governance decisions increases
when diverse stakeholders actively and consistently participate.
Furthermore, this approach is consistent with America's long-standing
policy of unlocking innovation by freeing sectors from unnecessary
government oversight.
Recognizing, of course, that the U.S. Government still must
complete its careful assessment of the proposals, and recognizing that
there already are constructive suggestions for further improvements, we
are optimistic that the results of ICANN's and NTIA's remaining work
will result in a transition that will meet NTIA's conditions set forth
two years ago and that should benefit not only global businesses but
also all those who seek a more global and ubiquitous Internet. In
addition, although the U.S. Government's review of the transition
proposal justifiably may take time, the Coalition believes these new
accountability mechanisms should be put into place promptly regardless
of the timing of the overall transition. These mechanisms, a product of
the two-year-long multistakeholder process, should help to ensure the
ongoing stability and reliability of the Internet as it continues to
help the world's people economically, socially and culturally.
Ultimately, the Internet Governance Coalition believes the
proposals approved by the ICANN Board in Marrakesh will be good for
America, good for American business, good for the Internet, and good
for the world. The members of the Internet Governance Coalition believe
that it is critically important that the free and open Internet is
protected and that ICANN is accountable to the Internet community.
Therefore, it is important that any final plan approved by NTIA do
these things. Looking ahead, all stakeholders should stay engaged,
especially in the near term as ICANN works to adopt amended bylaws and
the U.S. Government undertakes its review. Continuing improvements to
these processes can be made, including with respect to increasing
transparency into ICANN's functions and interactions. Such work begins
in earnest next month and ongoing engagement by U.S. businesses and the
U.S. Government with ICANN as it matures into ``adulthood'' is
essential.
I would like to thank the Committee for allowing me, on behalf of
the Internet Governance Coalition, to present our views on these
matters of great importance for preserving the fundamental principles
that have governed the Internet, and have greatly benefited not only
America, but also the world.
The Chairman. Thank you, Ambassador Gross.
Mr. Manning?
STATEMENT OF RICHARD MANNING, PRESIDENT,
AMERICANS FOR LIMITED GOVERNMENT
Mr. Manning. Chairman, Ranking Member, and distinguished
members of the Committee, thank you for the opportunity to
offer Americans for Limited Government's view regarding the
NTIA plan to transition oversight of the Internet's Domain Name
System.
Advocates of the transition have long held the concern that
failure to move forward would in some way fracture the
Internet, and that has been the rationale given by many for the
U.S. to proceed with turning over the IANA functions to a new
governance body led by the current vendor, ICANN, which handles
these and other functions on behalf of the U.S. Government.
Last year, then outgoing ICANN CEO and President Fadi
Chehade stated that failure to transition the IANA functions
would result in this fracturing, saying, ``ICANN's community
may fracture or fray slowly, becoming divided. The technical
operating communities using IANA may go separate ways.''
But that's not the real danger. Let me be clear. No
multistakeholder system that can be devised, even with all
these smart guys sitting at this table--no multistakeholder
system can be devised that will ever be as effective at
protecting the free and open Internet as the current U.S.
Government and the protections of the U.S. Constitution. In
short, the Internet works, so the burden of proof on whether to
change control over some of the core functions is on the
proponents of that change, and the fracturing rationale for
change is already becoming moot.
Last week, the State Department's Daniel Sepulveda and
NTIA's Lawrence Strickling stated in an official blog post that
the Internet is already being fractured by China, which has
developed an alternate root zone system as well as a separate
naming convention. Sepulveda and Strickling write, ``If left
unchanged, China's regulations would undermine some of the most
fundamental aspects of the Internet--openness, reliability, and
interoperability--within China. By creating its own rules for
domain name management, China is threatening to fragment the
Internet, which would limit the Internet's ability to operate
as a global platform for human communication, commerce, and
creativity.''
Only the most naive would believe that going forward with
this transition will assuage the government of China from
implementing their own Internet censorship regime. One only
needs to look at the recorded failed attempt to have 12,000
different words excluded from use in domain names on the dot-
xyz top level domain for proof that the Chinese will pursue
their own vision for the Internet for the future.
So how would ICANN hold up over the long haul in protecting
a free and open Internet? I must contend not well, based upon a
proposal to change ICANN's bylaws that is pending right now to
include a commitment to respect, ``international recognized
human rights.''
A May 20 letter by Senators Cruz, Lee, and Lankford to
Commerce Secretary Pritzker explains that this provision would
``open the door to the regulation of content. Inclusion of such
a commitment would unquestionably be outside the historical
mission of an organization whose functions are supposedly very
limited to the names and numbers and protocol parameters which
are way down in the plumbing of the Internet.''
Cruz, Lee, and Lankford continued, ``However, any provision
such as human rights that is included in ICANN's bylaws
automatically becomes an integral part of ICANN's core mission
and, in this case, could provide a gateway to content
regulation.'' Regulating content is antithetical to the concept
of a free and open Internet, and ICANN's willingness to even
consider this proposal shows a stunning admission of their
inadequacy to be the protector of speech in a post-transition
world.
As this committee is well aware from the recent Facebook
censorship allegations, a private entity has no legal
responsibility to uphold First Amendment freedoms, and, post-
transition, this would apply to ICANN, and any Constitutional
protection afforded to holders of domains against censorship
would be washed away. It is also increasingly clear that any
attempt to transition the Internet will face significant legal
hurdles, disrupting any orderly transition.
The first legal issue is whether President Obama has the
authority to conduct the transfer without going through the
congressionally established channels for the disposal of
property. The administration has argued that they would not be
transferring property so the law doesn't apply. Yet the
contracts that govern the relationship between the U.S.
Government and ICANN repeatedly refer to it as property,
negating their argument and making their process for the
transition dubious at best.
Adding to the legal questions, ICANN is currently exempt
from any antitrust litigation over their highly lucrative
monopoly in creating and selling top level domain names. This
protection is due to the very government vendor contract they
seek to get out from under. Not that it should, but Congress
has not acted to provide ICANN any post-transfer antitrust
exemptions. As a result, it's reasonable to assume that legal
challenges would be forthcoming with potential competitors
attempting to break ICANN's single source power to price
current and future top level domain names, manage existing top
level domain leases, and create new top level domain names.
As strange as it may seem, the same Obama administration
that seeks to transition the people of the United States'
property to ICANN was so frustrated by this vendor just 4 years
ago, they put out an RFP on the contract due to ICANN's
accountability failures. Yet today, they ask you to give some
new untested iteration of that same unresponsive vendor
permanent power with little accountability to you, as
representatives of the people of the United States.
The U.S. Government stands as the protector of freedom on
the Internet. Vendors like ICANN help bring specific expertise
to manage the day to day operations of the Internet, and the
system functions well when the U.S. Government plays its
oversight role to prevent abuse. Americans for Limited
Government urges you to use every legislative power at your
disposal to stop the planned transition of these critical
Internet functions to ICANN. The rationale for the transition
is moot, and allowing the Obama administration to proceed would
create an open door to future Internet censorship.
I submit the remainder of my testimony for the record.
[The prepared statement of Mr. Manning follows:]
Prepared Statement of Richard Manning, President,
Americans for Limited Government
Chairman Thune, Ranking Member Nelson, and members of this
distinguished committee, thank you for the opportunity to offer
Americans for Limited Government's views regarding the National
Telecommunications and Information Administration's (NTIA) plan to
transition oversight of the Internet's domain name system (DNS),
including the Internet Assigned Numbers Authority (IANA) functions, to
the Internet Corporation for Assigned Names and Numbers (ICANN).
The actions of Congress over the months ahead will determine if the
primary value of maintaining a free and open Internet prevails or not.
Advocates for the transition have long held the concern that
failure to move forward would in some way fracture the Internet, and
that has been the rationale given for the U.S. to proceed with turning
over the IANA functions to a new governance body led by the current
vendor, ICANN, which handles these and other functions on behalf of the
U.S. Government. Last year, then-outgoing ICANN CEO Fadi Chehade stated
that failure to transition the IANA functions would result in
fracturing. Chehade stated, ``ICANN's community may fracture or fray
slowly, becoming divided. . . . The technical operating communities
using IANA may go separate ways . . .'' \1\
---------------------------------------------------------------------------
\1\ http://domainincite.com/19390-chehade-outlines-five-ways-icann-
could-die
---------------------------------------------------------------------------
But that is not the real danger. Let me be clear, no
multistakeholder system that can be devised will ever be as effective
at protecting a free and open Internet as the current United States
government oversight system.
It is probably safe to assume that everyone in this room agrees
that protecting a free and open Internet is a primary value. It is also
probably safe to assume that everyone agrees that the Internet
structure as currently administered by the United States government has
provided that platform since its inception. In short, the Internet
works, so the burden of proof on changing management over some of its
core functions is on the proponents.
What is also undeniably true, based upon a State Department hosted
May 16, 2016, blog post \2\ by Daniel Sepulveda,\3\ the Deputy
Assistant Secretary of State and U.S. Coordinator for International
Communications and Information Policy in the State Department's Bureau
of Economic and Business Affairs (EB) \4\ and Lawrence E. Strickling,
the Assistant Secretary of Commerce for Communications and Information
and Administrator, National Telecommunications and Information
Administration, is that the Internet is already being fractured by
China which has developed an alternate root zone system as well as a
separate naming convention.
---------------------------------------------------------------------------
\2\ https://blogs.state.gov/stories/2016/05/16/china-s-internet-
domain-name-measures-and-digital-economy#sthash.m76i03qf.dpuf
\3\ http://www.state.gov/r/pa/ei/biog/bureau/209063.htm
\4\ http://www.state.gov/e/eb/
---------------------------------------------------------------------------
Sepulveda and Strickling write, ``The digital economy has become
one of the most powerful engines for global economic growth. If left
unchanged, China's regulations would undermine some of the most
fundamental aspects of the Internet--openness, reliability, and
interoperability 1--within China. By creating its own rules for domain
name management, China is threatening to fragment the Internet, which
would limit the Internet's ability to operate as a global platform for
human communication, commerce, and creativity.''
Only the most naive would believe that the government of China is
going to be assuaged to not implement their own Internet censorship
regime if only the United States turned a large portion of Internet
governance over to a multi-national stakeholder community.
And those who believe that the IANA functions transition would
temporarily stem China's threat to fracture the Internet, need only
look at China's attempted censorship demands on the .XYZ top level
domain name where the government of China demanded last year that the
owner not allow 12,000 different words be accepted as domain names
including ``liberty'' and ``democracy'' as revealing the terrible
potential cost of maintaining the Internet's ``interoperability.''
Stunningly, the issue of possible content censorship in a post-
transition world is left wide open by a proposal to insert into ICANN's
bylaws a commitment to respect ``internationally recognized human
rights.'' A May 20, 2016, letter by Senators Cruz, Lee and Lankford to
Commerce Secretary Pritzker states this provision ``would open the door
to the regulation of content. Inclusion of such a commitment would
unquestionably be outside the historical mission of an organization
whose functions are supposedly `very limited to the names and numbers
and protocol parameters which are way down in the plumbing of the
Internet.' '' \5\
---------------------------------------------------------------------------
\5\ http://www.cruz.senate.gov/?p=press_release&id=2646
---------------------------------------------------------------------------
Cruz, Lee and Lankford continue writing, ``However any provision,
such as human rights, that is included in ICANN's bylaws automatically
becomes an integral part of ICANN's core mission and, in this case,
could provide a gateway to content regulation.''
Given the audacity of ICANN's proposal before the transition has
even occurred, Congress can be assured that if content is not
regulated, then China or somebody else could aggressively fracture the
Internet as the free exchange of ideas is antithetical to their
national interest. And if content is regulated, the Internet will cease
to exist as a free and open system removing its DNA and unalterably
changing it. What's more, as this committee is well aware from the
recent Facebook censorship allegations, a private entity has no legal
responsibility to uphold First Amendment freedoms, so post-transition,
there would be no constitutional protection afforded holders of domains
using terms like liberty, should China or any other entity prevail in a
censorship gambit.
What's more it is increasingly clear that any attempt to transition
the Internet will face significant legal hurdles disrupting any orderly
transfer.
The first legal issue surrounds whether President Obama has the
authority to conduct the transfer without going through the
Congressionally established legal channels for the disposal of
property. The Administration has argued that they would not be
transferring property so the law doesn't apply, yet, the contracts that
govern the relationship between the U.S. Government and ICANN
repeatedly refer to property negating that argument.
Incredibly, the same Obama Administration that seeks to deny that
ICANN manages U.S. Government property, put out a Request for Proposals
in 2012 for the contract that ICANN manages due to the vendor's failure
to respond to various accountability changes that were being demanded.
Yet, today, they ask you to give some iteration of that same
unresponsive vendor permanent power with little if any accountability
to either the U.S. Government or you as representatives of the people
of the United States.
What's more, ICANN has been exempt from any antitrust questions of
their highly lucrative monopoly in creating and selling top level
domain names due to their being protected by the very contract they
seek to get out from under. Congress has not acted to provide ICANN any
antitrust exemptions should the transfer occur. Not that it should, but
as a result, it is reasonable to assume that legal challenges would be
forthcoming should the transfer occur attempting to break ICANN's
single source power to price current and future top level domain names,
manage existing top level domain leases and create new top level domain
names.
The United States government stands as the protector of freedom on
the Internet. Vendors like ICANN help bring specific expertise to
manage the day to day operations of the Internet, and the system
functions well when the United States government plays its oversight
role to prevent abuse.
Absent the U.S. Government's light handed oversight, the idea of a
free and open Internet will certainly become a thing of the past.
I urge you to use every legislative power at your disposal to stop
the planned transition of these critical Internet functions to ICANN.
The rationale for the transition is moot and allowing the Obama
Administration to proceed would create an open door to future
censorship. I submit the remainder of my testimony for the record. Yet
I must remind you to consider if you choose to proceed not only how the
NTIA transition plan might work, but what could happen to the free and
open Internet if it does not.
Does the NTIA have legal authority to transfer IANA functions to ICANN?
On March 25, 2014, Rep. Blake Farenthold and Rep. Darrell Issa
issued a letter \6\ to Assistant Secretary for Communications of the
National Telecommunications and Information Administration (NTIA)
Lawrence Strickling regarding the NTIA's March 14, 2014, announcement
\7\ of its intention to transition key Internet domain name functions
to the Internet Corporation for Assigned Names and Numbers (ICANN) and
the global multistakeholder community. The letter specifically asked
Strickling, ``Does the Executive Branch have unilateral authority to
transfer control over the Internet addresses and root zone management
of domains?''
---------------------------------------------------------------------------
\6\ http://farenthold.house.gov/uploadedfiles/icann.pdf
\7\ http://www.ntia.doc.gov/press-release/2014/ntia-announces-
intent-transition-key-internet-domain-name-functions
---------------------------------------------------------------------------
On Jan. 14, 2015, Issa and Farenthold actually received a reply
from Strickling on April 28, 2014.\8\ In it, Strickling stated:
``NTIA's announcement marks the final phase of privatization of the
Internet domain name system (DNS) first outlined by the U.S. Government
in 1998 after broad consultation with stakeholders in the development
of Statement of Policy,'' referring to Federal Register Volume 63,
Number 111 published on Wednesday, June 10, 1998, Pages 31741-31751.\9\
---------------------------------------------------------------------------
\8\ http://getliberty.org/wp-content/uploads/2015/01/
NTIA_Letter_to_Rep-_Issa_4-28-14.pdf
\9\ http://www.gpo.gov/fdsys/pkg/FR-1998-06-10/html/98-15392.htm
---------------------------------------------------------------------------
Strickling added, ``Our action is fully consistent with the 2012
resolution, H.Con.Res.127, that called on the United States to continue
to support a global Internet free from government control and to
preserve and advance the successful multistakeholder model that governs
the Internet.''
On the specific question of legal authority, Strickling wrote: ``In
2000, NTIA did not contract with ICANN to procure the IANA functions
services as an assertion of `control' over the Internet DNS. Rather
NTIA contracted with ICANN as a temporary measure to carry out the
government's policy to allow the private sector to take leadership for
management of the Internet DNS. By performing the IANA functions in a
competent manner for almost a decade and half, ICANN has established
itself in this role and there is no longer a need to maintain a
government contract designating it to perform these functions. Just as
Federal agencies can enter into contracts they need to fulfill their
missions without specific legislative authority, Federal agencies can
discontinue obtaining services when they no longer need them. As NTIA
made clear at the time of its Statement of Policy, it intended only to
procure the IANA functions services until such time as the transition
to private sector management of the Internet DNS was complete.''
Finally, in a footnote Strickling stated referencing a 2000 then-
General Accounting Office (GAO) report on the potential need for
legislative action in this area: ``GAO's discussion about the need for
legislative authority to transfer government property does not concern
the provision of the IANA functions under contract since no government
property or assets are involved in the contract.'' \10\
---------------------------------------------------------------------------
\10\ http://www.gao.gov/new.items/og00033r.pdf
---------------------------------------------------------------------------
The IANA functions contract, government property and Article IV,
Section 3 of the Constitution
Although Strickling claimed in the letter that ``no government
property or assets are involved in the contract,'' here, Strickling
clearly mischaracterized the contract. To wit, the current October 1,
2012, NTIA contract with ICANN explicitly states that ``All
deliverables under this contract become the property of the U.S.
Government.'' \11\
---------------------------------------------------------------------------
\11\ http://www.ntia.doc.gov/files/ntia/publications/sf_26_pg_1-2-
final_award_and_
sacs.pdf
---------------------------------------------------------------------------
Deliverables under the contract include ``technical requirements
for each corresponding IANA function,'' ``performance standards in
collaboration with all interested and affected parties . . . for each
of the IANA functions,'' and ``a fully automated root zone management
system . . . [that] must, at a minimum, include a secure (encrypted)
system for customer communications; an automated provisioning protocol
allowing customers to manage their interactions with the root zone
management system; an online database of change requests and subsequent
actions whereby each customer can see a record of their historic
requests and maintain visibility into the progress of their current
requests; and a test system, which customers can use to meet the
technical requirements for a change request; an internal interface for
secure communications between the IANA Functions Operator; the
Administrator, and the Root Zone Maintainer,'' among other items.
Further, ICANN collects annual revenues of more than $100 million a
year, making it property of real value.
Article 4, Section 3 of the U.S. Constitution states that only
``The Congress shall have power to dispose of . . . property belonging
to the United States.''
It therefore follows that NTIA cannot perform the transfer of the
IANA functions to ICANN without a vote in Congress, or some other
authorizing statute, for example, 40. U.S.C., Chapter 5, Subchapter
III, ``Disposing of property'' (see below).
In addition, the IANA itself reverts to the Commerce Department
upon termination of the contract: ``the Government may terminate the
contract for default.'' The contract even provides for the possibility
of IANA being performed by another entity: ``In the event the
Government selects a successor contractor, the Contractor shall have a
plan in place for transitioning each of the IANA functions to ensure an
orderly transition while maintaining continuity and security of
operations.'' These provisions further indicate that upon conclusion of
the contract on Sept. 30, 2015, the Commerce Department remains in
possession of the IANA functions.
Disposal of property provided under 40 U.S. Code, Chapter 5, Subchapter
III
In Strickling's letter to Rep. Issa, he explicitly denied that
there was any property or assets involved in the transfer of the IANA
functions to ICANN: ``the need for legislative authority to transfer
government property does not concern the provision of the IANA
functions under contract since no government property or assets are
involved in the contract.'' This despite the fact the contract,
explicitly states, ``All deliverables under this contract become the
property of the U.S. Government.''
One reason to deny this might be because, if it were government
property, then it would fall under an onerous process for disposing of
property under the 40 U.S.C., Chapter 5, Subchapter III, ``Disposing of
property.'' The disadvantage to NTIA and ICANN would be that the IANA
functions would have to come up for competitive bid as provided in 40
U.S.C. 545 (a).
Or if a negotiated sale as provided in 40 U.S.C. 545 (d)(1), it
would have to done at ``fair market value'': ``the sale must be
publicized to an extent consistent with the value and nature of the
property involved and the price established must reflect the estimated
fair market value of the property.'' Since this is an entity that does
more than $100 million a year of revenue, the fair market value of the
IANA functions--we're talking about a global monopoly for allocation of
an unlimited number of IP addresses, domain names, and top-level domain
names--it should be worth billions!
Or, if disposal through a contract broker as provided in 40 U.S.C.
545 (c), ``wide public notice of the availability of the property for
disposal'' would be required: ``Disposals and contracts for disposal of
surplus real and related personal property through contract realty
brokers employed by the Administrator shall be made in the manner
followed in similar commercial transactions under regulations the
Administrator prescribes. The regulations must require that brokers
give wide public notice of the availability of the property for
disposal.'' Yet, no such notice has been given.
The Antitrust Implications under 40 U.S.C. 559 (b)(1)
But perhaps most critically, if Strickling were to acknowledge
there is property at stake, the disposal of such property to a private
interest would invoke antitrust.
40 U.S.C. 559 (b)(1) states: ``An executive agency shall not
dispose of property to a private interest until the agency has received
the advice of the Attorney General on whether the disposal to a private
interest would tend to create or maintain a situation inconsistent with
antitrust law.'' Since Strickling's position is that there is no
property involved, NTIA would not have sought the Attorney General's
advice the disposal of property to a private interest prior to the
March 2014 announcement.
That is a huge liability for ICANN, and potentially for anyone
involved at the agency if the provision of the contract stating ``All
deliverables under this contract become the property of the U.S.
Government'' was deliberately ignored. No more so than because 15
U.S.C. Section 2 prohibits and makes a felony any attempt ``to
monopolize any part of the trade or commerce among the several states,
or with foreign nations.'' 15 U.S.C. Sections 13 and 14 forbid any
business practice where the effect ``may be to substantially lessen
competition or tend to create a monopoly in any line of commerce.''
Antitrust law challenges to IANA functions administrator were
anticipated in the 1998 statement of policy: ``Several commenters
suggested that the U.S. Government should provide full antitrust
immunity or indemnification for the new corporation. Others noted that
potential antitrust liability would provide an important safeguard
against institutional inflexibility and abuses of power.''
To which, NTIA responded, saying it would seek no such immunity for
the corporation and that antitrust would actually help keep the
corporation in line: ``Applicable antitrust law will provide
accountability to and protection for the international Internet
community. Legal challenges and lawsuits can be expected within the
normal course of business for any enterprise and the new corporation
should anticipate this reality.'' \12\ Is that not still a danger
today?
---------------------------------------------------------------------------
\12\ ``Applicable antitrust law will provide accountability to and
protection for the international Internet community. Legal challenges
and lawsuits can be expected within the normal course of business for
any enterprise and the new corporation should anticipate this reality.
The Green Paper envisioned the new corporation as operating on
principles similar to those of a standard-setting body. Under this
model, due process requirements and other appropriate processes that
ensure transparency, equity and fair play in the development of
policies or practices would need to be included in the new
corporation's originating documents. For example, the new corporation's
activities would need to be open to all persons who are directly
affected by the entity, with no undue financial barriers to
participation or unreasonable restrictions on participation based on
technical or other such requirements. Entities and individuals would
need to be able to participate by expressing a position and its basis,
having that position considered, and appealing if adversely affected.
Further, the decision making process would need to reflect a balance of
interests and should not be dominated by any single interest category.
If the new corporation behaves this way, it should be less vulnerable
to antitrust challenges.'' Federal Register Volume 63, Number 111
published on Wednesday, June 10, 1998, Pages 31741-31751, http://
www.gpo.gov/fdsys/pkg/FR-1998-06-10/html/98-15392.htm
---------------------------------------------------------------------------
Did NTIA even conduct any legal analysis about whether it had the
authority to proceed with the transfer?
In an April 2, 2014, letter to Assistant Secretary of Commerce
Lawrence Strickling, head of the National Telecommunications and
Information Administration (NTIA), 35 Senate Republicans including Sen.
John Thune (R-S.D.) and Sen. Marco Rubio (R-Fla.) sought
``clarification regarding the recent announcement that NTIA intends to
relinquish responsibility of the Internet Assigned Numbers Authority
(IANA) functions to the global multistakeholder community.'' \13\
---------------------------------------------------------------------------
\13\ http://www.thune.senate.gov/public/index.cfm/2014/4/thune-
rubio-demand-answers-from-administration-on-internet-transition
---------------------------------------------------------------------------
In part, the letter questions the legal basis for the Commerce
Department to perform the transition of vital Internet names and
numbers functions, citing a 2000 report by the then-U.S. General
Accounting Office, which stated, ``it is unclear if the Department has
the requisite authority'' to transfer control of the IANA functions to
a private entity. The Senate letter requests ``the Administration's
legal views and analysis on whether the United States Government can
transition the IANA functions to another entity without an Act of
Congress.'' \14\
---------------------------------------------------------------------------
\14\ http://www.gao.gov/new.items/og00033r.pdf
---------------------------------------------------------------------------
Yet, to date, the White House has failed to produce the legal basis
for transferring the IANA functions without Congress, despite numerous
requests. As revealed on March 23, 2014, by the Wall Street Journal's
L. Gordon Crovitz: ``a spokesman for the Commerce Department's National
Telecommunications and Information Administration said the agency
reviewed this legal issue and concluded the administration can act
without Congress but refused to share a copy of the legal analysis.''
\15\
---------------------------------------------------------------------------
\15\ http://online.wsj.com/news/articles/
SB10001424052702303802104579453263393882136
---------------------------------------------------------------------------
The Crovitz report prompted Americans for Limited Government to
file a Freedom of Information Act (FOIA) request with the NTIA
requesting the legal basis for its plans to transition control over
Internet governance to some as of yet unnamed international body. The
FOIA request includes ``All records relating to legal and policy
analysis developed by or provided to the National Telecommunications
and Information Administration that support its decision to `transition
key Internet domain name functions,' including any analysis showing
whether the NTIA has the legal authority to perform the transition.''
\16\
---------------------------------------------------------------------------
\16\ http://getliberty.org/wp-content/uploads/2014/03/DOC-NTIA-
FOIA-re-ICANN-03-27-14.pdf
---------------------------------------------------------------------------
The Department's interim response to the FOIA request,\17\ which
was referenced in the Wall Street Journal on June 29, 2014, by
Crovitz,\18\ still failed to produce the legal analysis. And the
agency's many responses since \19\ \20\ \21\ \22\ have not produced any
legal analysis supporting the transition, nor has the agency claimed
any privileged exemptions under the FOIA Act. Meaning, such an analysis
being conducted prior to the transition being announced might not even
exist.
---------------------------------------------------------------------------
\17\ http://getliberty.org/wp-content/uploads/2014/06/DOC-
NTIA_FOIA-Responsive-Docs-Set1.pdf
\18\ http://online.wsj.com/articles/gordon-crovitz-au-revoir-to-
the-open-internet-1404076280
\19\ http://getliberty.org/wp-content/uploads/2015/06/DOC-
NTIA_FOIA-Responsive-Docs-Set2.pdf
\20\ https://getliberty.org/wp-content/uploads/2016/03/
NTIAFOIA3rdSet-3-14-16.pdf
\21\ https://getliberty.org/wp-content/uploads/2016/03/
NTIAFOIAResponse4thSet3-18-16.pdf
\22\ https://getliberty.org/wp-content/uploads/2016/01/
NTIAFOIAResponse1-7-2016.pdf
---------------------------------------------------------------------------
Is NTIA already violating the Congressional defund barring the
transition of the IANA functions passed the past two years?
In Singapore on Feb. 15, 2015, Assistant Secretary for
Communications and Information at the Department of Commerce Lawrence
Strickling answered a question about why he believed the National
Telecommunications and Information Administration (NTIA) was still
allowed to plan transitioning the Internet Assigned Numbers Authority
(IANA) functions to the Internet Corporation for Assigned Names and
Numbers (ICANN) in spite of a thrice-enacted prohibition \23\ \24\ \25\
by Congress barring the use of funds to engage in said transition,
including attending such conferences at taxpayer expense.
---------------------------------------------------------------------------
\23\ PL 114-113, H.R. 2029, Section 539.
\24\ PL 114-53, H.R. 719, Section 101.
\25\ PL 113-235, H.R. 83, Section 540.
---------------------------------------------------------------------------
Strickling replied:
``So yes there was a rider attached into our budget in the
budget bill last December that said that we can't spend
appropriated dollars to complete transition before the end of
next September. And so we have taken that seriously and I've
reported out that there will not be a transition before next--
the end of next September. At the same time though there was
some commentators, not necessarily anybody with any expertise
were saying ah this shuts down NTIA. They have to sit on the
sidelines and not do anything. You know, like our hands are
tied. And so that concerned us. We didn't read the bill that
way or the law that way and we've consulted with--informally
with both the House and the Senate, both Democrats and
Republicans to get an understanding as to what exactly they
intended. So one of the things was even in the rider it said
you must provide us regular reports and updates on how the
transition is going. So they clearly intended us to do things
like come to the ICANN meetings and watch and report back
what's going on. We clearly are participating in the GAC and
none of that affects that. And the only real issue was to what
extent do we provide feedback during the process to the
community. And on that, you know, the assurances I got from
most of the staff on the Hill was they didn't see any problem
with that because . . . we want to protect the interests of the
United States in all of this.'' \26\
---------------------------------------------------------------------------
\26\ http://singapore52.icann.org/en/schedule/tue-ncuc/transcript-
ncuc-10feb15-en.pdf
Americans for Limited Government Foundation President Nathan
Mehrens has filed a complaint with the Commerce Department Inspector
General David Smith on Feb. 1,\27\ stating, ``Despite the explicit
prohibition, the NTIA is clearly engaged in activities that are
designed to lead to the relinquishment of its responsibilities
regarding Internet domain name system functions, including
responsibility with respect to the authoritative root zone fine and the
Internet Assigned Numbers Authority functions. The NTIA personnel have
traveled to numerous conferences on Internet governance and speeches
from NTIA personnel clearly indicate that they are moving ahead as if
Congress had not acted to prohibit their very actions.''
---------------------------------------------------------------------------
\27\ https://getliberty.org/wp-content/uploads/2016/03/NPM-
Complaint-to-DOC-IG-Re-NTIA-Antideficiency-Act_02.01.16.pdf
---------------------------------------------------------------------------
As for Strickling's citing of reporting requirements that were
included in the spending bills, these do not authorize working on the
relinquishment of the IANA functions specifically because they cannot
supersede the statute.
In the 2015 omnibus spending bill, Congress required NTIA to submit
a report due January 30 ``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.''
\28\ That does not authorize any work on relinquishing the Internet,
except to produce NTIA's backup plan in case anything went wrong with
such a transition.
---------------------------------------------------------------------------
\28\ http://www.circleid.com/posts/
20141210_breaking_us_government_funding_bill_del
ays_iana_transition/
---------------------------------------------------------------------------
Congress also directed ``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.'' \29\
---------------------------------------------------------------------------
\29\ http://www.circleid.com/posts/
20141210_breaking_us_government_funding_bill_del
ays_iana_transition/
---------------------------------------------------------------------------
This reporting requirement was not fully followed when NTIA most
recently unilaterally modified its contract with ICANN on August 4
allowing for a short-term extension.\30\ According to NTIA
Administrator Strickling, Congress was not notified of the contract
extension until Friday, August 14, after the modification to the
contract had already gone into effect.\31\
---------------------------------------------------------------------------
\30\ https://www.ntia.doc.gov/files/ntia/publications/
mod_0003_for_sa1301-12-cn-0035_
signed.pdf
\31\ https://www.ntia.doc.gov/blog/2015/update-iana-transition
---------------------------------------------------------------------------
Again, these reporting requirements were very specific and narrowly
tailored to ensure Congress would be notified of any changes to the
NTIA contract with ICANN and of the agency's contingency plan in case
any IANA functions transition goes awry. None of them authorized
continued work on the transition.
As for the claim by Strickling that he informally consulted with
Congressional staff about the intent of the prohibition, that is no
legal standard whatsoever. As Mehrens noted in the Inspector General
complaint, ``it is not Hill staff that decide whether there is a
problem, but rather the actual language passed by Congress should be
examined.''
Americans for Limited Government Foundation has since been informed
by the Inspector General that they have referred the matter for an
investigation.
As Congress works to affirm its commitment to restoring the
Constitution's Article I separation of powers, including the power of
the purse, a great place to start would be with prohibitions on the use
of funds that Congress has already enacted. With NTIA clearly violating
the prohibition barring the use of funds to engage in the IANA
functions transition, plus not even meeting with the reporting
requirements set for by Congress in the 2015 omnibus spending bill,
there should be legislative redress, and that should be requiring NTIA
to extend the current contract with ICANN for another two years.
Conclusion
While many of my esteemed fellow panelists today will be examining
in great depth the multistakeholder plan for NTIA's transition of the
IANA functions, and rightly so, the testimony I intend to deliver today
is much more of a gut check. Mr. Chairman, the real questions you must
consider today and the days that follow are whether NTIA--and indeed
the members of this committee and Congress as a whole--have done their
own due diligence. That is, in ensuring whether this proposed
transition is even lawful, serves U.S. interests and preserves the free
and open Internet that we all today take for granted. And finally,
whether surrendering oversight of the Internet's names and numbers is
even a good idea.
Failing in these key pillars, we risk creating an unaccountable
Internet that is beyond any law or authority, acts openly against U.S.
interests and is anything but free and open. One that taxes users of
the Internet at will, tramples upon property rights and threatens the
religious and civic liberties of peoples around the world. Or, one that
is no longer authoritative, splinters into multiple root zones and
cannot maintain control over its framework as it splits into
irreconcilable chaos, hindering global communications and commerce.
Today, the Internet works.
It is free and open. Users of the Internet, high and low, have a
ready, robust recourse in Federal courts to adjudicate any and all
First Amendment claims should censorship ever occur in the fulfillment
of the current U.S. Government contracts and cooperative agreements.
That it hasn't occurred is a testament to the virtue of the current
U.S. oversight. But members of this committee should not take false
comfort or become complacent. Much like the U.S. nuclear deterrent, we
do not consider the absence of a nuclear exchange as reason to suddenly
begin disarming our vast arsenal of warheads. U.S. oversight of the
Internet has enabled the Internet to take on our uniquely American
character for openness and entrepreneurship. Somebody has to be
standing on the wall, and it is undoubtedly better to have the current,
underappreciated constitutional system that says the root zone
operator, ICANN, a U.S. Government contractor, cannot violate the First
Amendment rights of anyone who uses the Internet or else they go to
court--than to leave it to the forces of globalization and profit, or
foreign powers who might capture the function, to determine what shall
be free and what shall be open.
In 1998, groups like the Electronic Frontier Foundation (EFF)
criticized the transfer of DNS to a private foundation like ICANN.
``Internet administration has always guaranteed free speech and due
process, since it has been done by U.S. Government contractors who are
required to follow the U.S. Constitution. If the New IANA moves
Internet administration out from under the U.S. Government, as there is
general agreement to do, the public will lose these guarantees,'' Shari
Steele, Staff Counsel at EFF warned at the time.\32\ These concerns
have not been raised since, and certainly not during this process.
---------------------------------------------------------------------------
\32\ https://w2.eff.org/Infrastructure/DNS_control/ICANN_IANA_IAHC/
19980924_eff_
new_iana_pressrel.html
---------------------------------------------------------------------------
The Internet as we know it depends on there being a single,
authoritative source for the names and numbers in order to work. For,
while the government-overseen contracts and agreements are in place to
establish the rules of the road, ICANN, Verisign, the regional
registries, etc. are all shielded from antitrust scrutiny. Such
pitfalls of collusion, monopoly power and price gouging might have
arisen otherwise if the Internet had been brought up singularly in the
private sector. Instead today's single, usable and affordable Internet,
again, is a virtue of U.S. oversight. It is a monopoly, yes, but a
regulated one that can be pulled back if needs be, where claims of U.S.
Government property over the IANA functions act simply as a failsafe--
just in case anything goes wrong. We must consider whether trading the
current system for a single, unaccountable monopoly beyond law or
competition, or one that could be subject to antitrust suits the moment
it engages in anticompetitive activities, splintering the Internet,
could actually be a far worse outcome. Antitrust law challenges to the
IANA functions were fully anticipated in the 1998 statement of policy:
``Applicable antitrust law will provide accountability to and
protection for the international Internet community. Legal challenges
and lawsuits can be expected within the normal course of business for
any enterprise and the new corporation should anticipate this
reality.'' \33\ But throughout this entire process, nobody has really
considered the antitrust fallout of the transition.
---------------------------------------------------------------------------
\33\ ``Applicable antitrust law will provide accountability to and
protection for the international Internet community. Legal challenges
and lawsuits can be expected within the normal course of business for
any enterprise and the new corporation should anticipate this reality.
The Green Paper envisioned the new corporation as operating on
principles similar to those of a standard-setting body. Under this
model, due process requirements and other appropriate processes that
ensure transparency, equity and fair play in the development of
policies or practices would need to be included in the new
corporation's originating documents. For example, the new corporation's
activities would need to be open to all persons who are directly
affected by the entity, with no undue financial barriers to
participation or unreasonable restrictions on participation based on
technical or other such requirements. Entities and individuals would
need to be able to participate by expressing a position and its basis,
having that position considered, and appealing if adversely affected.
Further, the decision making process would need to reflect a balance of
interests and should not be dominated by any single interest category.
If the new corporation behaves this way, it should be less vulnerable
to antitrust challenges.'' Federal Register Volume 63, Number 111
published on Wednesday, June 10, 1998, Pages 31741-31751, http://
www.gpo.gov/fdsys/pkg/FR-1998-06-10/html/98-15392.htm
---------------------------------------------------------------------------
The Internet in its current form is in fact held accountable by the
U.S. contracts. In 2012, NTIA put up the IANA functions for a request
for proposals,\34\ to see if anybody else besides ICANN might perform
the functions but, mostly, to ensure that ICANN realized its
authorities could be revoked as a fallback if the U.S. deemed it
necessary.
---------------------------------------------------------------------------
\34\ https://www.fbo.gov/
index?s=opportunity&mode=form&tab=core&id=337abfa3fa508d26073
8052baf46bdf9&_cview=1
---------------------------------------------------------------------------
A fallback plan, mind you, that without the current contract, the
U.S. will lack. In the 2015 omnibus spending bill, Congress required
NTIA to submit a report due January 30 ``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.'' \35\
---------------------------------------------------------------------------
\35\ http://www.circleid.com/posts/
20141210_breaking_us_government_funding_bill_de
lays_iana_transition/
---------------------------------------------------------------------------
In response in its first quarterly report, NTIA told Congress that
``Our preliminary answer is that the criteria for the plan that NTIA
established in its March 2014 announcement will ensure an outcome that
is not `deleterious' to the United States.'' \36\
---------------------------------------------------------------------------
\36\ http://www.ntia.doc.gov/files/ntia/publications/
iana_report_013015.pdf
---------------------------------------------------------------------------
Besides this vague assurance, NTIA never produced its contingency
plan should the IANA functions transition harm U.S. interests in its
subsequent quarterly reports to Congress.\37\ \38\ \39\ \40\ \41\ That
is to say, Mr. Chairman, there is no backup plan should the Internet
become an unaccountable monopoly, subjected to foreign capture or
broken into hundreds of pieces--even though Congress required there to
be such a plan. You've got the plan for transition, but no fallback
position.
---------------------------------------------------------------------------
\37\ https://www.ntia.doc.gov/files/ntia/publications/
ntia_second_quarterly_iana_report
_05.07.15.pdf
\38\ https://www.ntia.doc.gov/files/ntia/publications/
ntia_iana_third_quarterly_report.pdf
\39\ https://www.ntia.doc.gov/files/ntia/publications/
iana_transition_report_to_congress_-_fourth_quarterly_11.02.15.pdf
\40\ https://www.ntia.doc.gov/files/ntia/publications/
ntia_iana_fifth_quarterly_report_to
_congress.pdf
\41\ https://www.ntia.doc.gov/files/ntia/publications/iana-
transition-quarterly-report-05162016
.pdf
---------------------------------------------------------------------------
In short, the dangers of the IANA functions transition and leaving
U.S. oversight behind include:
(1) The plan necessarily lacks First Amendment protections for the
Internet naming conventions because the government contract is
the only way for anybody to invoke the First Amendment;
(2) The plan lacks antitrust protections for ICANN without the
government contract, and Congress does not appear to anticipate
any need to offer an antitrust exemption to ICANN. Not that it
should, as it might lead to other unintended consequences;
(3) The plan lacks Congressional authority;
(4) The plan could lead to an Internet that is either an
unaccountable monopoly or one that is fractured, either way it
could end up being less free and open;
(5) Neither Congress nor NTIA has any backup plan if anything goes
wrong.
Thank you for allowing me to present Americans for Limited
Government's rationale for ardently opposing the proposed transition.
The Chairman. Thank you, Mr. Manning.
Mr. Schafer?
STATEMENT OF BRETT D. SCHAEFER, JAY KINGHAM FELLOW,
INTERNATIONAL REGULATORY AFFAIRS, THE HERITAGE FOUNDATION
Mr. Schafer. Mr. Chairman, members of the Committee, thank
you for inviting me to testify.
It has been more than two years since NTIA announced that
it intended to end its current contract with ICANN and called
for ICANN to coordinate the development of a proposal for
transitioning key Internet functions to the global
multistakeholder community. NTIA caught many in the Internet
community by surprise with this announcement. After all, the
proposed transition was not driven by problems or failings
within the current IANA process or the U.S. role within that
process. The process was working well and was providing a
platform for the Internet to continue its fantastic success and
growth. If it was not broken, then why fix it?
The answer was international politics of an opportunistic
and cynical variety. Other governments, particularly repressive
regimes that are interested in constraining free speech and
political discourse online, have sought for years to
internationalize Internet governance. This disclosure has added
a new complication and led the U.S. to announce the transition
out of concern that it could no longer thwart efforts to have
the ITU intrude into Internet governance. This decision may
have provided temporary reprieve, but it is no solution.
Regardless of whether the transition occurs or U.S. stewardship
continues, China, Russia, and other likeminded governments will
not cease their attempts to regulate and censor the Internet
domestically through the U.N. or by asserting whatever leverage
they can within and upon ICANN. Approving the transition will
not satisfy the ambitions of these governments. It will only
whet their appetite.
From the very beginning, I and my colleagues at Heritage
have consistently opposed increased government authority over
ICANN and the Internet. In fact, less than a month after the
NTIA announcement, my colleague, Paul Rosenzweig, testified
that he opposed the notion that government should have a formal
membership role in ICANN. Paul and I have engaged heavily in
the ICANN working group discussions on the transition proposal.
But our overriding concern, voiced in publications and ICANN
discussions, has been to prevent the expansion of government
authority beyond its current advisory role.
I respect the work and time invested to develop the
transition proposal, which includes a number of sound
recommendations to improve accountability. However, a number of
concerns remain.
First, the near certainty that there are errors and
omissions in ICANN's revised bylaws which have doubled in size
as a result of the transition proposal and the accountability
of reforms. These oversights will likely go undiscovered due to
a politically compressed timeline which leaves no adequate
period for testing the new mechanisms.
Second, fundamental and controversial issues such as human
rights and legal jurisdiction that will not be resolved prior
to the transition.
Third, questions about how our stress tested solutions will
work under real-world pressures and whether the ICANN community
can adequately muster the sustained will and cohesion to
effectively use them.
Most critically, despite our best efforts, governments
would have more power and influence in ICANN than is the case
today, as I discuss in greater length in my written testimony.
The threshold for the Board to reject government advice has
been raised, and governments will for the first time have the
power to vote on bylaw changes, dismissal of the Board, ICANN's
budget, and other major decisions.
Worth noting is that the consensus requirement does not
apply to GAC decisionmaking in the EC, in the Empowered
Community. It only applies to the Board advice. And it is also
worth noting that the Board alone decides whether the GAC
advice has materially affected the decision that results from
the Board's decision. For this reason alone, I would oppose the
transition.
But even if you find the expansion of government authority
inside of ICANN acceptable, the fact that what we are
considering is untested should give you pause. Adopting the
fundamental changes to ICANN outlined in the transition
proposal, while simultaneously ending the historical U.S.
contractual relationship with ICANN, is tantamount to a
strategy of cut the rope and hope. Everything could work out
just as we envision it will. But then, again, we might
encounter serious problems. Hope is no substitute for rigorous
empirical real-world testing.
After the transition, the ability of the U.S. to provide
support for the ICANN community's future demands that the ICANN
Board adopt additional changes would be far less than if the
current contractual arrangement remains in place. Over the past
2 years, with the transition online, the ICANN Board has
repeatedly resisted efforts to maximize accountability. That is
not a good sign. Without the leverage of U.S. oversight, the
Board would be even less accommodating. In short, we have once
chance to get this right.
Currently, ICANN and Verisign are engaged in a parallel
testing period for the new IANA process to make sure that if
the transition occurs, the new process will be reliable. I
believe we should also parallel test the governance and
accountability measures we are proposing. This is why I would
recommend, at the very least, a soft extension of the current
contract. Importantly, this would not derail the progress that
has been made. The ICANN Board has confirmed that nearly all of
the recommended changes, including the new accountability
improvements, will be adopted and implemented regardless of
whether the transition proceeds or not.
A soft extension of the current contract for a reasonable
period of time, say, for 2 years, would allow the community and
ICANN to take the new mechanisms for a sustained test drive to
verify that the new governance model works as we hope that it
will. It will also continue U.S. oversight as the details of
Work Stream 2 are fully fleshed out.
In conclusion, let me make clear that I am not opposed to
the transition. But the transition need not happen this
September, nor need it happen exactly under the terms of this
current proposal. Extending the contract does pose risks, but
so does ending U.S. oversight before we know that the new ICANN
will work as envisioned.
NTIA and ICANN have repeatedly stated that it is better to
get this done right than to get it done in any specific
timeline, and I fully agree with that statement. The transition
to a multistakeholder ICANN is too important to get wrong, and
it is too important to rush.
Thank you very much, and I look forward to your questions.
[The prepared statement of Mr. Schafer follows:]
Prepared Statement of Brett D. Schaefer, Jay Kingham Fellow,
International Regulatory Affairs, The Heritage Foundation
My name is Brett Schaefer and I am the Jay Kingham Fellow in
International Regulatory Affairs at The Heritage Foundation. The views
I express in this statement for the record are my own and should not be
construed as representing any official position of The Heritage
Foundation.
A critical change in Internet governance is imminent. It has been
two years since the National Telecommunications and Information
Administration (NTIA), an arm of the U.S. Department of Commerce,
announced that it intended to end its current contract with the
Internet Corporation for Assigned Names and Numbers (ICANN) and
``transition key Internet domain name functions to the global
multistakeholder community.'' \1\
---------------------------------------------------------------------------
\1\ News release, ``NTIA Announces Intent to Transition Key
Internet Domain Name Functions,'' National Telecommunications and
Information Administration, March 14, 2014, http://www.ntia.doc.gov/
press-release/2014/ntia-announces-intent-transition-key-internet-
domain-name-functions (accessed March 15, 2016).
---------------------------------------------------------------------------
Now the U.S. Government is on the verge of giving up its historical
role in overseeing changes in the Domain Name System (DNS), the policy
apparatus and technological method that assigns names and numbers on
the Internet. It is the system, for example, that ensures that
``Heritage.org'' refers to The Heritage Foundation and not some
hypothetical ancestry and heritage group. If things proceed as
proposed, the DNS system will be run independently under ICANN with
oversight performed by a new international multistakeholder entity. As
the Administration and Congress consider the transition, projected to
be completed by the end of September 2016, they should proceed with
caution.
In its 2014 announcement, before the transition could occur, the
NTIA required ICANN to develop a formal proposal that would assure the
U.S. that the termination of its contractual relationship would not
threaten the security and openness of the Internet, undermine the
bottom-up multistakeholder process, or replace the current role of the
NTIA with a government-led or intergovernmental organization solution.
That proposal was finalized and approved by the relevant groups in
ICANN, known as supporting organizations and advisory committees (SO/
ACs), and the ICANN board.\2\ Draft bylaws intended to reflect the
changes recommended in the Cross Community Working Group (CCWG-
Accountability) and the IANA Stewardship Transition Coordination Group
(ICG) proposals have been drafted and posted for public comment by
ICANN.
---------------------------------------------------------------------------
\2\ News release, ``Plan to Transition Stewardship of Key Internet
Functions Sent to the U.S. Government,'' ICANN, March 10, 2016, https:/
/www.icann.org/news/announcement-2016-03-10-en (accessed March 15,
2016).
---------------------------------------------------------------------------
I and my colleague Paul Rosenzweig participated extensively in this
process through our research and publications, submissions to ICANN's
public comment process, involvement in and attendance at ICANN
meetings, participation in the CCWG-Accountability meetings and remote
discussions, and membership in the Non-Commercial Users Constituency
and the Non-Commercial Stakeholder Group within ICANN. We have
commented on and debated various proposed changes in those forums and
our suggestions have in some cases been incorporated into the final
CCWG-Accountability proposal and the revised bylaws.
I have great respect for the work and time that the members and
participants of these groups have invested. The proposal includes a
number of positive elements that, if they operate as envisioned, would
create mechanisms for the ICANN community to hold the board and staff
accountable and reverse imprudent decisions.
There are concerns, however. For instance, while not replacing the
NTIA with a governmental or intergovernmental solution, the proposed
changes would greatly enhance the power of governments within ICANN
relative to the status quo. There are important issues that have yet to
be fleshed out, like human rights and ICANN's jurisdiction of
incorporation and headquarters, which will be implemented in Work
Stream 2 and are unlikely to be completed prior to September 2016.
Although improved accountability measures would be established, it is
unknown how they will work in practice. The new bylaws are twice as
long as the current bylaws and establish new, untested mechanisms and
procedures. Unforeseen errors, flaws, or oversights could lie
unnoticed.
Uncertainty with regard to how this new ICANN structure would
operate should lead the U.S. to retain some oversight until there is
confidence that it will work smoothly as envisioned. To that end, I
recommend a ``soft extension'' of the existing contractual
relationship--one that allows ICANN two years to demonstrate that the
new procedures it is putting in place actually work to hold the
corporation accountable. The transition to a multistakeholder global
system is too important to get wrong and too important to rush.
A Long, Difficult Process
In March 2014, the NTIA announced that it intended ``to transition
key Internet domain name functions to the global multistakeholder
community'' and asked ICANN to convene a group of global stakeholders
to develop a proposal on a new process to replace the NTIA's
``procedural role of administering changes to the authoritative root
zone file--the database containing the lists of names and addresses of
all top-level domains.'' \3\ In that announcement, however, NTIA
stated:
---------------------------------------------------------------------------
\3\ News release, ``NTIA Announces Intent to Transition Key
Internet Domain Name Functions.''
NTIA has communicated to ICANN that the transition proposal must have
---------------------------------------------------------------------------
broad community support and address the following four principles:
Support and enhance the multistakeholder model;
Maintain the security, stability, and resiliency of the
Internet DNS;
Meet the needs and expectation of the global customers and
partners of the IANA [Internet Assigned Number Authority]
services; and,
Maintain the openness of the Internet.
Consistent with the clear policy expressed in bipartisan resolutions
of the U.S. Senate and House of Representatives (S.Con.Res.50 and
H.Con.Res.127), which affirmed the United States support for the
multistakeholder model of Internet governance, NTIA will not accept
a proposal that replaces the NTIA role with a government-led or an
inter-governmental organization solution.\4\
---------------------------------------------------------------------------
\4\ Ibid.
After the NTIA made its announcement, ICANN quickly convened the
IANA Stewardship Transition Coordination Group (ICG), comprised of
three sub-groups: the Cross Community Working Group on Stewardship
(CWG-Stewardship); Numbering Resources (CRISP Team); and Protocol
Parameters (IANAPLAN Working Group).\5\ This effort focused on the
technical questions raised by the transition and how the gaps in
process resulting from the withdrawal of the NTIA would be filled. The
relatively narrow focus of this effort, combined with the earlier
start, led to the ICG proposal being largely complete by January 2015.
---------------------------------------------------------------------------
\5\ For a descriptive chronology and the ICG proposal, see IANA
Stewardship Transition Coordination Group (ICG), Proposal to Transition
the Stewardship of the Internet Assigned Numbers Authority (IANA)
Functions from the U.S. Commerce Department's National
Telecommunications and Information Administration (NTIA) to the Global
Multistakeholder Community, March 2016, https://www.icann.org/en/
system/files/files/iana-stewardship-transition-proposal-10mar16-en.pdf
(accessed March 15, 2016).
---------------------------------------------------------------------------
To their credit, however, many in the ICANN community made clear
that they would not be satisfied with a narrow technical proposal that
only addressed the gaps arising from the end of the U.S. contractual
relationship with ICANN. They insisted that long-standing concerns
about insufficient transparency and accountability within ICANN and its
decision-making process needed to be addressed before the transition
occurred.
An initial attempt by the ICANN board to lead this process raised
strong objections from the ICANN community, which was concerned that
the board would not develop or support robust accountability measures
that would allow the community to block objectionable board decisions
or recall the board. An unprecedented unanimous statement from all of
the stakeholder groups and constituencies that make up ICANN's Generic
Names Supporting Organization (gNSO) \6\ rebuked the board for trying
to control this process and called for ``creation of an independent
accountability mechanism that provides meaningful review and adequate
redress for those harmed by ICANN action or inaction in contravention
of an agreed upon compact with the community.'' \7\
---------------------------------------------------------------------------
\6\ The gNSO is one of three ``supporting organizations'' in ICANN.
It is by far the largest and provides ICANN with policy advice relating
to generic names--most of the domain names on the Internet in the .org,
.edu, .com, and other top-level domains (TLDs), including all of the
relatively new gTLDs like .biz and .net. The country code name
supporting organization (ccNSO) provides advice relating to country
code domains--for example, the .uk that signifies the United Kingdom.
The address supporting organization (ASO) provides advice regarding IP
addresses--the unique numbers given to all computers connected to the
Internet.
\7\ Brett Schaefer and Paul Rosenzweig, ``Fireworks Erupt at
ICANN's London Meeting,'' The Daily Signal, June 29, 2014, http://
dailysignal.com/2014/06/29/fireworks-erupt-icanns-london-meeting/
(accessed March 15, 2016).
---------------------------------------------------------------------------
After several months of negotiation, the board and the community
agreed to establish the Cross Community Working Group on Enhancing
ICANN Accountability (CCWG-Accountability), which held its first
meeting in December 2014. Since then, the CCWG-Accountability's 28
members and 203 participants--including myself and Paul Rosenzweig--
dedicated enormous effort to developing a robust accountability
proposal. As of March 2016, the group had held 209 meetings and calls
consuming a total of 404 hours and had exchanged 12,430 e-mails on the
proposal.\8\
---------------------------------------------------------------------------
\8\ ICANN, ``IANA Stewardship Transition and Enhancing ICANN
Accountability Engagement and Participation Statistics,'' March 2014-
March 2016, https://www.icann.org/resources/pages/iana-accountability-
participation-statistics-2015-11-04-en (accessed March 15, 2016).
---------------------------------------------------------------------------
The final draft of their proposal was approved by the chartering
organizations and the ICANN board at a meeting in early March, and the
board has now transmitted the ICG and CCWG-Accountability proposals to
the NTIA. Both proposals were analyzed and revisions were made to
ICANN's bylaws to reflect their recommendations and posted for public
comment by ICANN. The NTIA has announced that it will review the
combined proposal to determine whether it meets the criteria set forth
and will consult with Congress as the transition moves forward.\9\
---------------------------------------------------------------------------
\9\ Lawrence E. Strickling, Assistant Secretary of Commerce for
Communications and Information and NTIA Administrator, ``Reviewing the
IANA Transition Proposal,'' National Telecommunications and Information
Administration, March 11, 2016, https://www.ntia.doc.gov/blog/2016/
reviewing-iana-transition-proposal (accessed March 15, 2016).
---------------------------------------------------------------------------
Board Interference and Procedural Irregularities. A number of
challenges arose in this process beyond the normal differences of
opinion and approach inherent in negotiating an important document
between groups with different equities. High among these challenges was
the tendency of the ICANN board to act as a participant in the process
rather than as a recipient of the proposal as devised by the
multistakeholder community.
When queried, former ICANN Chief Executive Officer Fadi Chehade
assured Congress that the board would allow the multistakeholder
community to develop the accountability plan independently and would
transfer it forward to the NTIA even if it contained provisions that
the board opposed.\10\ The board, however, did not adhere to this
promise and instead intervened to shape the proposal in fundamental
ways and block provisions that it opposed.
---------------------------------------------------------------------------
\10\ ICANN CEO Fadi Chehade promised the Senate that ``if the
stakeholders present [ICANN] with [such] a proposal [w]e will give it
to NTIA, and we committed already that we will not change the
proposal.'' Hearing, Preserving the Multistakeholder Model of Internet
Governance, Committee on Commerce, Science and Transportation, U.S.
Senate, February 25, 2015, http://www.commerce.senate.gov/public/
index.cfm/2015/2/preserving-the-multistakeholder-model-of-internet-
governance (accessed March 15, 2016).
---------------------------------------------------------------------------
Most notable was the board's opposition to the Cross Community
Working Group on Enhancing ICANN Accountability Second Draft Report
(Work Stream 1) because it recommended making ICANN into a member-based
nonprofit corporation with the SO/ACs jointly comprising a single
member called the ``Sole Member Model.'' \11\ Under California law,
which is the relevant law because ICANN is currently incorporated in
California, this model would have given the community significant
authority over the board in much the same way that shareholders have
control of for-profit corporations.
---------------------------------------------------------------------------
\11\ ICANN, ``Cross Community Working Group on Enhancing ICANN
Accountability 2nd Draft Report (Work Stream 1),'' Public Comment,
August 3, 2015, https://www.icann.org/public-comments/ccwg-
accountability-2015-08-03-en (accessed March 15, 2015).
---------------------------------------------------------------------------
The board objected to membership for several reasons that it
thought could be potentially destabilizing. Prominent among them was
the board's concern that the ``Sole Member Model would bring with it
statutory rights that could impact ICANN and its operations, without
any fiduciary duty to ICANN.'' \12\ In other words, the board objected
to membership even though it was a standard California method of
governance in nonprofit organizations because, in its view, the model
gave the membership too much power over ICANN's operations.
---------------------------------------------------------------------------
\12\ Quoted from ICANN board, ``Frequently Asked Questions
Regarding Approach for Community Enforceability,'' September 11, 2015,
http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/
msg00045.html (accessed March 15, 2016). For the entire comment, see
ICANN board, ``ICANN Board Submission of Supplementary and Final
Comments to the CCWG--Accountability 2nd Draft Proposal Public Comment
Forum,'' September 11, 2015, http://forum.icann.org/lists/comments-
ccwg-accountability-03aug15/msg00045.html (accessed March 15, 2016).
---------------------------------------------------------------------------
In the face of the board's opposition, the CCWG-Accountability
backed down and did not insist that the board transfer the proposal to
the NTIA as promised to Congress. Instead, the CCWG-Accountability
dramatically altered the proposal, wasting weeks and perhaps months of
work. A new proposal titled ``CCWG-Accountability--Draft Proposal on
Work Stream 1 Recommendations'' was submitted to public comment on
November 30.\13\ This proposal abandoned the membership model and
suggested a ``Sole Designator Model'' that would consolidate the SO/ACs
as a group into a ``designator,'' later called the Empowered Community
(EC). Under California law, a designator has far more limited powers
than a member. To address these gaps, the proposal would grant
specified powers to the EC through new or amended bylaws.
Notwithstanding the gap-filling effort, this shift in the model of
governance undoubtedly weakened the legal standing and independence of
the ICANN community as compared to a member organization. Specifically,
many powers would be subject to change through bylaw amendment and
would lack the guarantees of statute in California law--that is, an
authority external to ICANN.\14\
---------------------------------------------------------------------------
\13\ ICANN Public Comment, ``CCWG-Accountability--Draft Proposal on
Work Stream 1 Recommendations,'' November 30, 2015, https://
www.icann.org/public-comments/draft-ccwg-accountability-proposal-2015-
11-30-en (accessed March 15, 2016).
\14\ This is by no means the only such board intervention. In fact,
the very start of this process began poorly with the ICANN board
authorizing the CEO to ``explore ways to accelerate [an] end of U.S.
stewardship'' without consulting the ICANN community or making the
decision public. For a detailed chronology, see Jordan Carter,
``Chronology of Recent ICANN Accountability Milestones,'' October 9,
2015, https://internetnz.nz/sites/default/files/2015-10-09-ICANN-accty-
chrono.pdf (accessed March 15, 2016).
---------------------------------------------------------------------------
Other significant board interventions occurred during the process
and even after the report was supposed to be final. As noted by ICANN's
Intellectual Property Constituency (IPC) in its comment to the gNSO:
[A] last minute, Board-initiated change was made less than two
weeks before the commencement of ICANN 55 and the deadline for
CCWG Chartering Organization decisions whether to approve or
reject the Final Proposal. The Board-initiated change did not
involve a fringe issue; rather it went to the heart of the
proposal, and in particular the balance of government interests
and private sector interests.\15\
---------------------------------------------------------------------------
\15\ ICANN/GNSO, ``Transmittal of results of GNSO Council
consideration of CCWG-Accountability Supplemental Final Proposal,''
March 9, 2016, p. 5, http://mm.icann.org/pipermail/ac
countability-cross-community/attachments/20160309/f1b5ce45/CCWG-
Accountabilitytransmit
talofresults-9March2016-0001.pdf (accessed March 15, 2016).
The board's comment led to changes in the proposal even though that
stage of the process had officially closed and only copyedits and
corrections were being accepted. This procedural irregularity was not
---------------------------------------------------------------------------
unique. As noted by the IPC:
While the effort of the CCWG has spanned 14 months, many of the
details ultimately provided in the Proposal were not completely
articulated until the Third Draft Proposal circulated in late
Fall 2015. . . . Review of the final proposal between
publication and the Marrakech meeting, as well as the earlier
truncated comment period for the Third Draft Proposal, which
fell during the Winter holidays, required herculean efforts to
review, digest and (when called for) draft responsive comments.
Given their importance, it is unfortunate that the proposed
changes to ICANN governance and accountability mechanisms were
fast tracked.\16\
---------------------------------------------------------------------------
\16\ Ibid., pp. 5-6.
Despite the fact that the NTIA and ICANN repeatedly assured
Congress that it was more important to get this transition right than
to get it done on time, these procedural compromises were deemed
necessary because of a perceived need to meet political deadlines. The
NTIA has the ability to extend the U.S. oversight role through
September 2019, but there is a keen desire in ICANN, the NTIA, and
among many in the community to get the transition done before the 2016
U.S. presidential election out of concern that a new Administration
might not support the timeline. It is uncertain whether the report
contains unnoticed problems or oversights that could impair ICANN
operations or governance, but if they do surface after the transition
occurs, this politically driven haste would be partially to blame for
the failure to vet this proposal diligently.
Final CCWG Report: Good and Bad
The CCWG-Accountability proposal, titled the Supplemental Final
Proposal on Work Stream 1 Recommendations, was finalized on February 23
and supported by all seven SO/ACs \17\ and the ICANN board at the ICANN
55 public meeting in Marrakech on March 4-10. The document is
incredibly detailed and totals 346 pages, including 15 annexes and
another 11 appendices.\18\ The impact on the bylaws is similarly
large--the ICANN bylaws as revised (in draft form, at this point) to
reflect the ICG and the CCWG-Accountability proposals are more than
twice the size, both in terms of pages and number of words, as the
current bylaws. The changes substantially revise ICANN's accountability
mechanisms, establish two new entities within ICANN, and outline a
number of important issues that will be developed in the coming months
or years to be incorporated into the bylaws and ICANN's operations.
---------------------------------------------------------------------------
\17\ In addition to the supporting organizations, ICANN has four
advisory committees (ACs) that are intended to advise the ICANN
community and the ICANN board on specific policy issues or to represent
the views and opinions of parts of the ICANN community that are not
integrated into the supporting organizations. The four ACs are the At-
Large Advisory Committee (ALAC); Governmental Advisory Committee (GAC);
Root Server System Advisory Committee (RSSAC); and Security and
Stability Advisory Committee (SSAC).
\18\ CCWG-Accountability, Supplemental Final Proposal on Work
Stream 1 Recommendations, February 23, 2016, https://www.icann.org/en/
system/files/files/ccwg-accountability-supp-proposal-work-stream-1-
recs-23feb16-en.pdf (accessed March 23, 2016).
---------------------------------------------------------------------------
The extent of the changes and the need to be familiar with ICANN's
structure and processes make it very difficult to comprehend the
proposal for those who have not been intimately involved in the
transition process. This will prove to be a barrier to efforts in
Congress to exercise due diligence in scrutinizing the report. In an
effort to assist congressional scrutiny, I will highlight significant
positive and negative elements of the proposal.
Positive Elements. Overall, a number of positive accountability
measures have been proposed and incorporated into the revised draft
bylaws.
Limiting ICANN's mission. One major concern is that ICANN
will see its role as broader than the technical management of
the DNS system and the Internet Assigned Number Authority
function, which has the responsibility for assigning names and
numbers to websites. Without the backstop provided by the NTIA
contract, some in the ICANN community were concerned that ICANN
could fall victim to mission creep that could distract the
organization from its primary purpose or drain resources
through support of tangential activities.
Under the CCWG-Accountability proposal, ICANN's mission is to be
``limited to coordinating the development and implementation of
policies that are designed to ensure the stable and secure
operation of the Domain Name System and are reasonably
necessary to facilitate its openness, interoperability,
resilience, and/or stability.'' \19\ The proposal also
clarifies that anything not specifically articulated in the
bylaws would be outside the scope and mission of ICANN.
Adoption of and adherence to this mission statement would go a
long way toward assuring that ICANN did not seek to become a
``global guardian of the Internet'' or take on responsibilities
beyond its narrow remit. The draft revised bylaws reflect the
limited mission as recommended by the CCWG.
---------------------------------------------------------------------------
\19\ Ibid., p. 26.
Creating fundamental bylaws. Certain bylaws, including those
establishing new accountability mechanisms and clarifying
ICANN's mission, were deemed too important to be changed by
board action alone. Under the proposal and in the revised draft
bylaws, they will also require approval by the ICANN community
as represented in the Empowered Community. This useful change
both prevents the board from acting unilaterally on these
fundamental bylaws without broader support and entrenches
limits on ICANN in the form of quasi-constitutional
---------------------------------------------------------------------------
restrictions.
Establishing the Empowered Community. A new nonprofit
association is to be established within ICANN called the
Empowered Community, populated by five of ICANN's SO/ACs: the
Address Supporting Organization (ASO); At Large Advisory
Committee (ALAC); Country Code Names Supporting Organization
(ccNSO); Generic Names Supporting Organization (gNSO); and
Government Advisory Committee (GAC).\20\ The EC would have the
statutory power to appoint and remove ICANN board directors,
either individually or as a group, and authority under the
bylaws to reject an operating plan, strategic plan, and budget
proposed by the board; approve changes in fundamental bylaws;
reject changes in standard bylaws; initiate a binding
Independent Review Process; and reject board decisions related
to reviews of the IANA functions, including triggering of any
Post Transition IANA (PTI) separation.\21\
---------------------------------------------------------------------------
\20\ The other two advisory committees, the Security and Stability
Advisory Committee and Root Server System Advisory Committee, informed
the CCWG-Accountability at the ICANN Public Meeting in October 2015
(ICANN 54) that they did not want to participate as decisional
participants in the Empowered Community. The revised bylaws make clear
that amending the fundamental bylaw listing the decisional participants
of the Empowered Community would be required to reverse this decision
and include SSAC and RSSAC among the decisional participants.
\21\ The PTI is the organizational structure envisioned for
technical operation of the IANA function after the NTIA contract is
terminated. It is to be a sub-organization within ICANN, but the draft
proposal contemplates the possibility of complete separation at some
point in the future, should the need arise.
In addition, the revised bylaws would grant the EC the right to
inspect ICANN accounting books and records, the right to
investigate ICANN by means of a third-party audit, and mandate
board engagement and consultation with the EC before approving
an annual or five-year strategic plan, an annual or five-year
operating plan, the ICANN annual budget, the IANA functions
budget, any bylaw changes, and any decisions regarding the PTI
separation process. Taken together, these changes provide
significant potential power to the EC to involve itself in
ICANN decisions, scrutinize ICANN activities, block undesired
---------------------------------------------------------------------------
actions, and hold the board to account.
Improving the Independent Review Process (IRP) and Request
for Reconsideration (RFR) mechanisms. The IRP is an independent
external arbitration review mechanism to ensure that ICANN does
not go beyond its limited scope and mission through its actions
or decisions and does not violate its bylaws. Under the CCWG-
Accountability proposal, the IRP process would be slightly
broadened in scope and made accessible to any materially
affected person or party (including the EC), less costly, and
more systematic through the establishment of a standing panel
of independent experts in ICANN-related fields. It would also
provide for interim relief if the decision could result in
irreparable harm. The RFR, which any individual can use to
appeal for a review of any ICANN action or inaction, would be
improved by expanding the range of permissible requests,
lengthening the time for filing a request, establishing firm
deadlines for RFR procedures and responses, adding transparency
requirements, narrowing the grounds for dismissal, and
requiring the board to handle all requests directly. Both of
these changes are helpful. Unfortunately, however, the RFR
process does not provide for interim relief during the
reconsideration process even though irreparable harm could
result.
Collectively, these accountability changes are a significant
improvement over the status quo. It is important to note that their
implementation is not dependent on NTIA and/or congressional approval
of the transition. When asked, the board confirmed that the
accountability improvements in the proposal would be adopted and
implemented whether the transition proceeds or not.\22\
---------------------------------------------------------------------------
\22\ A member of the Commercial Stakeholder Group asked the board
to confirm that ``Even in the event that there were some political
problem with the transition, it is your intention that we will have
implemented the bylaws changes. That the accountability reforms are
done and that we will have implemented the other aspects and that
political impediment to the transition will not prevent the
implementation of those bylaws reforms.'' ICANN board member Bruce
Tonkin answered on behalf of the board: ``So the only caveat in that
case . . . is if the NTIA wished to continue its agreement, we would
just need to make sure that any changes were not in conflict with that
agreement, which really doesn't involve much in the way of any of t he
accountability work that you've been involved in.'' ICANN board member
Cherine Chalaby added: ``So I'd like to add to what Bruce is saying.
Basically on the accountability reforms, I think the train has left the
station and the reasons for that is the community has come to an
agreement. I mean, if the community did not come to an agreement, it
would be a different thing. So I think they are good accountability
measures and we're committed to go forward with it, even if there are
political positions and such. So subject to some of the caveats that
Bruce has done, we're all in support of that.'' Video and initial
transcript available at ICANN Public Meetings, ``Joint Meeting of the
ICANN Board & the Commercial Stakeholders/Adobe Connect: Full [EN],''
March 8, 2016, https://meetings.icann.org/en/marrakech55/schedule/tue-
board-csg/ac-board-csg-08mar16-en (accessed March 15, 2016).
---------------------------------------------------------------------------
Remaining Issues of Concern. While the changes to ICANN include
many good provisions, there remain a number of concerns:
Lack of resolution on .mil and .gov. Today, the United
States has exclusive use of the .mil and .gov domains. Allowing
other governments or the private sector to use these gTLDs
poses security risks. In a July 8, 2015, hearing held by the
House Energy and Commerce Committee's Subcommittee on
Communications and Technology, when pressed about formalizing
the informal agreement about .mil and .gov, Assistant Secretary
for Communications and Information and NTIA Administrator
Lawrence Strickling stated,
There is nothing in the transition of our stewardship
which actually implicates .mil or .gov, and also .us,
which we administer at the Department of Commerce. But
we understand this is an issue of concern and so we
will do whatever is appropriate, in consultation with
the Department of Defense and GSA and the other
agencies that have equities in this, to make sure that
these names are protected going forward. We understand
the importance of it.
Today, they are not under any particular contract.
These are legacy names that go back to the very
beginning of the Internet. I think .mil was delegated
back in 1984. That shows you how old it is. So there is
no contract today, but there is a whole structure of
these informal regulations within the Internet model
that govern how . . .
[Question from Rep. Long] So you think informal
regulations would hold up through this process?
[Sec. Strickling] There is no reason why they should
change, but we are not going to rest there. We are
going to take a look at them and make sure that if
there is a way we can strengthen the U.S. Government's
rights to those names, we will do so.\23\
---------------------------------------------------------------------------
\23\ House of Representatives, Subcommittee on Communications and
Technology, Committee on Energy and Commerce, ``Internet Governance
After ICANN 53,'' July 8, 2015, pp. 52-53, http://docs.house.gov/
meetings/IF/IF16/20150708/103711/HHRG-114-IF16-20150708-SD006
.pdf (accessed May 20, 2016).
Even though the transition may occur within a few months, NTIA has
not publicly provided any detailed information on what, if
anything, it intends to do to address this matter. Congress
should not allow the transition to occur without securing sole
---------------------------------------------------------------------------
U.S. ownership, control and use of these domains in perpetuity.
An undefined commitment to human rights. The CCWG-
Accountability proposal includes a recommendation to
incorporate into the ICANN bylaws an undefined commitment to
internationally recognized human rights. Implementation of this
recommendation is deferred to the future under Work Stream 2.
``Internationally recognized human rights'' is a very broad,
imprecisely defined term, and there is no clear delineation of
where internationally recognized human rights start or end.
Indeed, it is a fundamental tenet in the United Nations and
among the majority of human rights advocates that human rights
are all interrelated, interdependent, and indivisible. More
than three dozen rights are recognized in the Universal
Declaration of Human Rights (UDHR); International Covenant on
Civil and Political Rights (ICCPR); and International Covenant
on Economic, Social and Cultural Rights (ICESCR), and the
Office of the High Commissioner for Human Rights identifies
over 50 human rights issues.\24\ New rights--the so-called
third-generation human rights, which some argue should include
the right to Internet access, also known as the right to
broadband--are being promulgated and seriously considered even
if they currently lack the acceptance of more established human
rights.\25\
---------------------------------------------------------------------------
\24\ Office of the High Commissioner for Human Rights, ``List of
Human Rights Issues,'' http://www.ohchr.org/EN/Issues/Pages/
ListofIssues.aspx (accessed March 15, 2016).
\25\ The first generation is civil and political rights like
freedom of expression and the right to due process. The second
generation is economic, social, and cultural rights like the right to
education and the right to housing.
Moreover, how these rights are understood often varies from one
country to another. For instance, under the U.S. Constitution,
freedom of speech is an extremely broad right, but in many
other countries, there are significant constraints on freedom
of speech in the interests of preventing, for instance, hate
speech. If ICANN adopts the more common and limited
interpretation of free speech in its human rights commitment,
it could create means for governments or businesses to use
---------------------------------------------------------------------------
ICANN to moderate content.
As noted above, the proposal clarifies that anything not
specifically articulated in the bylaws would be outside the
scope and mission of ICANN. In addition, the draft revised
bylaws stipulate that the ICANN's human right commitment to
respect human rights must be ``within the scope of its Mission
and other Core Values'' and ``does not create and shall not be
interpreted to create any additional obligations for ICANN and
shall not obligate ICANN to respond to or consider any
complaint, request or demand seeking the enforcement of human
rights by ICANN, except as provided herein.'' The final
italicized clause provides a worrisome loophole that such an
obligation could be created through the Work Stream 2 human
rights process. The CCWG public comment on the revised bylaws
recommends closing this potential loophole by strengthening the
current bylaw text and eliminating the final clause: ``except
as provided herein.'' \26\ But it remains uncertain if the
ICANN board will incorporate this deletion in the final
approved bylaws.
---------------------------------------------------------------------------
\26\ The CCWG-Accountability public comment recommends the
following revision: Replace current language with the following:
``(viii) Subject to the limitations set forth in Section 27.3, within
the scope of its Mission and other Core Values, respecti ng
internationally recognized human rights as required by applicable law.
This Core Value does not create, and shall not be interpreted to
create, any obligation on ICANN outside its Mission, or beyond
obligations found in applicable law. This Core Value does not obligate
ICANN to enforce its human rights obligations, or the human rights
obligations of other parties, against such other parties.'' CCWG-
Accountability, ``CCWG-Accountability Comments on Draft New ICANN
Bylaws,'' May 13, 2016, http://forum.icann.org/lists/comments-draft-
new-bylaws-21apr16/msg00004.html (accessed May 20, 2016).
Even so, an unknown commitment to respect human rights will almost
certainly be included in the bylaws. Therefore, there is a
legitimate concern that a broad commitment to ``internationally
recognized fundamental human rights,'' even if circumscribed by
the caveat that the commitment be within the mission and scope
of ICANN, would be an invitation for various civil society
groups, ICANN constituencies, and governments to petition the
organization to push the envelope and involve itself in human
rights activities like promoting the right to the Internet or
the right to development through access to information and
communications technology (ICT) that could be linked to ICANN's
core values and mission or observe human rights in a manner
that could be in tension with a truly free and open
Internet.\27\
---------------------------------------------------------------------------
\27\ Comment of Brett D. Schaefer and Paul Rosenzweig of The
Heritage Foundation on the Human Rights Commitment in the Cross
Community Working Group on Enhancing ICANN Accountability Second Draft
Report (Work Stream 1), September 11, 2015, http://forum.icann.org/
lists/comments-ccwg-accountability-03aug15/msg00037.html (accessed
March 15, 2016).
Enhanced power for governments. Since the March 2014 NTIA
announcement, I and my colleague Paul Rosenzweig have
repeatedly cautioned against providing enhanced authority for
governments in a post-transition ICANN in papers, articles,
congressional testimony, and public comments submitted to ICANN
on the various CCWG proposals.\28\ In fact, less than a month
after the NTIA announcement, Rosenzweig testified,
---------------------------------------------------------------------------
\28\ See, for instance, Paul Rosenzweig, Brett D. Schaefer, James
L. Gattuso and David Inserra, ``Protecting Internet Freedom and
American Interests: Required Reforms and Standards for ICANN
Transition,'' Heritage Foundations Backgrounder #2922, June 16, 2014,
http://www.heritage.org/research/reports/2014/06/protecting-internet-
freedom-and-american-interests-required-reforms-and-standards-for-
icann-transition (accessed May 20, 2016); Brett D. Schaefer,
``Stakeholder Perspectives on the IANA Transition,'' Testimony before
Subcommittee on Communications and Technology Energy and Commerce
Committee United States House of Representatives, May 13, 2015, http://
www.heritage.org/research/testimony/2015/stakeholder-perspectives-on-
the-iana-transition (accessed May 20, 2016); Brett D. Schaefer and Paul
Rosenzweig, ``Comment of the Heritage Foundation on the Cross Community
Working Group on Enhancing ICANN Accountability 2nd Draft Report (Work
Stream 1),'' August 20, 2015, http://forum.icann.org/lists/comments-
ccwg-accountability-03aug15/msg00005.html (accessed May 20, 2016); and
Brett D. Schaefer and Paul Rosenzweig, ``Comment on the CCWG-
Accountability Draft Proposal on Work Stream 1 Recommendations,''
December 16, 2015, http://forum.icann.org/lists/comments-draft-ccwg-
accountability-proposal-30nov15/msg00020.html (accessed May 20, 2016).
According to news reports, during the recent ICANN
meeting in Singapore, the Department of Commerce
appeared to accept the idea that governmental
organizations would have some formal membership role in
the new IANA management structure to be created by
ICANN. That would be consistent with ICANN's expressed
view that ``all'' stakeholders should have a say in the
management of the domain. I think that would be a
mistake. If the premise of our decision to give up NTIA
control of the IANA function is that governmental
management is suspect, then that should be equally true
of a governmental role (even a broader based one) in
the new IANA management structure. My recommendation
would be that the governmental role in any new
structure be limited to an advisory one--with no
formal, or informal right of control over the
process.\29\
---------------------------------------------------------------------------
\29\ Italics added. Paul Rosenzweig, ``The Proposed Transfer of the
IANA Function to ICANN,'' Testimony before the Subcommittee on Courts,
Intellectual Property and the Internet, Committee on the Judiciary,
United States House of Representatives, April 10, 2014, https://
judiciary.house.gov/wp-content/uploads/2016/02/041014-ICANN-
Rosenzweig.pdf (accessed May 20, 2016).
Under the current proposal, governments would significantly
increase their power in ICANN versus the status quo. As it now
stands, governments are represented in ICANN through the
Government Advisory Committee (GAC), an advisory body that is
unable to appoint board directors. The GAC has a power that
other advisory bodies do not--an ability to convey advice to
the board that the board must implement unless opposed by
majority vote--and even if this advice is rejected, the board
is obligated to try to find a mutually acceptable solution with
the GAC. This special advisory role has frustrated the
community because it allows the GAC to intervene at late hours
and upend community-led policy development processes.\30\
---------------------------------------------------------------------------
\30\ A good example of the pernicious potential that arises from
GAC intervention is the controversy that continues to plague ICANN over
the question of the delegation of the .africa domain name. Initially,
the board accepted the GAC's advice to favor one applicant over
another--a decision that it adopted in apparent violation of its own
internal procedures. The losing applicant, DotConnectAfrica, was
compelled to seek redress through the Independent Review Process--an
adjudication that led in the end to a declaration that the board had
acted improperly. See International Centre for Dispute Resolution,
Independent Review Panel, Case #50 2013 001083, DotConnectAfrica Trust
v. Internet Corporation for Assigned Names and Numbers, Final
Declaration, version redacted July 31, 2015, https://www.icann.org/en/
system/files/files/final-declaration-2-redacted-09jul15-en.pdf
(accessed March 15, 2016). More recently, when the board sought to
restart the .africa delegation (again awarding the domain to another
applicant), DotConnectAfrica sought and received a temporary
restraining order from a California court. See DotConnectAfrica Trust
v. Internet Corporation for Assigned Names and Numbers, No. CV 16-00862
(C.D.Calif., Mar. 2, 2016), https://www.icann.org/en/system/files/
files/litigation-dca-minute-order-plaintiff-ex-parte-application-
04mar16-en.pdf (accessed March 15, 2016). The case remains pending, and
a final adjudication on the merits has yet to be made, but it should
trouble all observers that the board's apparent deference to the GAC
has embroiled ICANN in such a long-running and contentious piece of
litigation.
Under the current proposal, the GAC would retain this special
advisory power, but with slightly different details. The
threshold for board rejection of GAC advice actually increases
from 50 percent to 60 percent. But the proposal also clarifies
that only GAC advice that is truly adopted by consensus
(without any formal objection) can trigger the board's
obligation to find a mutually acceptable solution. While the
definition of consensus is welcome, the higher threshold for
board rejection of GAC consensus advice is a real increase in
GAC authority. In addition, the higher threshold may place
ICANN in legal jeopardy because California law requires that
the ICANN board be in charge of decision making. This new
threshold creates the possibility that a decision could be
implemented over the opposition of a majority of the board.\31\
---------------------------------------------------------------------------
\31\ In January, CCWG-Accountability legal advisor Rosemary Fei
pointed out, ``The Board under California Corporate Law has to be in
charge or running the organizations of how it can exercise its
fiduciary duties. And that's a basic requisite of corporate structure.
And if the way it works is that if the GAC is able to come up with
consensus advice, that the Board can only reject with a two-thirds
vote, that means that you could have more than half the Board believe
that something is not a good idea and not good for the corporation and
all of those things, and still have to do it.'' ICANN, ``Transcript
_CCWG ACCT_CoChairs-Lawyer Meeting_8 Jan.doc'' January 8, 2016, https:/
/community.icann.org/download/attachments/56989655/Transcript%
20_CCWG%20ACCT_CoChairs-
Lawyer%20Meeting_820Jan.doc?version=1&modificationDate
=1453041576000&api=v2 (accessed May 20, 2016). Perforce, this concern
would also apply to the 60 percent rejection threshold.
In addition to retaining its privileged advisory power, the GAC
also would be a decisional participant in the EC with a direct
say in the exercise of all community powers including, for
example, board dismissal and bylaw changes.\32\ This is
somewhat moderated by the ``GAC carve-out,'' which prohibits
the GAC from being a decisional participant when the matter
involves a board decision based on consensus GAC advice. This
restriction is to prevent the GAC from getting two bites of the
apple by being able to provide consensus advice to the board
and use its new authority in the EC to impede efforts by the
community to block implementation of that advice if the board
approves it.
---------------------------------------------------------------------------
\32\ It is uncertain how often or under what circumstances or
procedures the GAC will be able to agree to exercise this decisional
authority. The GAC failed to clarify this matter in its Marrakech
statement supporting the CCWG-Accountability transition proposal, which
stated, ``The GAC expresses its support for the multistakeholder,
bottom-up approach within ICANN and reiterates its interest in
participating in the post--transition phase with a view to fulfilling
its roles and responsibilities. The GAC wishes to express its sincere
appreciation of the diligent and productive work performed by the CCWG-
Accountability, its Co-Chairs, its members and all its contributors.
The GAC reaffirms its role as an advisory committee to the ICANN Board
and within the ICANN multistakeholder environment and will continue to
advise on relevant matters of concern with regard to government and
public interests. The GAC has considered the CCWG's proposal and
supports Recommendations 1 to 10 and 12. However, there is no consensus
on Recommendation 11 and the ``carve-out'' provision contained in
Recommendations 1 and 2. As regards Recommendations 1 and 2, the GAC
expresses its willingness to take part in the envisioned empowered
community mechanism as a decisional participant, under conditions to be
determined internally. While there are delegations that have expressed
support for the proposal, there are other delegations that were not in
a position to endorse the proposal as a whole. In spite of this
difference of opinions, the GAC has no objection to the transmission of
the proposal to the ICANN Board.'' Governmental Advisory Committee,
``GAC Communique09Marrakech, Kingdom of Morocco,'' Marrakech, March 9,
2016, p. 4-5, https://gacweb.icann.org/display/GACADV/
GAC+Communiques?preview=/28278854/41943976/GAC%20Morocco%2055
%20Communique%20FINAL.pdf (accessed May 20, 2016).
Indisputably, the CCWG-Accountability proposal would grant the GAC
powers that it did not previously have and increase government
authority in ICANN versus the status quo. These changes were
recommended even though some Members of Congress have
explicitly opposed this outcome. Specifically, a 2014 letter
from Senators John Thune (R-SD) and Marco Rubio (R-FL) made
clear that from their perspective, government influence should
---------------------------------------------------------------------------
not be expanded in the transition:
First, ICANN must prevent governments from exercising
undue influence over Internet governance. In April we
led 33 Senators in a letter to NTIA regarding the IANA
transition. We wrote that ``[r]eplacing NTIA's role
with another governmental organization would be
disastrous and we would vigorously oppose such a plan.
ICANN should reduce the chances of governments
inappropriately inserting themselves into apolitical
governance matters. Some ideas to accomplish this
include: not permitting representatives of governments
to sit on ICANN's Board, limiting government
participation to advisory roles, such as through the
Government Advisory Committee, and amending ICANN's
bylaws to only allow receipt of GAC advice if that
advice is proffered by consensus. The IANA transition
should not provide an opportunity for governments to
increase their influence.\33\
---------------------------------------------------------------------------
\33\ Italics added. Senator John Thune and Senator Marco Rubio,
letter to Dr. Stephen Crocker, Chairman, ICANN board of Directors, July
31, 2014, https://www.icann.org/en/system/files/correspondence/thune-
rubio-to-crocker-31jul14-en.pdf (accessed March 15, 2016).
A number of CCWG members and participants shared this concern about
government increasing its power in ICANN post-transition, as
did some representatives from ICANN stakeholder and
constituency groups.\34\ Yet this is precisely what will occur
if the proposal is enacted as recommended.
---------------------------------------------------------------------------
\34\ See comments of Non-Commercial Stakeholders Group (NCSG) and
Intellectual Property Constituency (IPC) councilors in ICANN/GNSO,
``Transmittal of results of GNSO Council consideration of CCWG-
Accountability Supplemental Final Proposal,'' pp. 5-10.
An uncertain commitment to U.S. jurisdiction. In the draft
revised bylaws, the Post Transition IANA and the Empowered
Community, respectively, would be ``a California nonprofit
public benefit corporation'' and ``a nonprofit association
formed under the laws of the State of California.'' There would
also be several references to the California Corporations Code
and a clause specifying that mediation for the IRP shall occur
in Los Angeles. However, the bylaws never specify that ICANN
itself must remain a California non-profit corporation. Article
24 states, ``The principal office for the transaction of the
business of ICANN shall be in the County of Los Angeles, State
of California, United States of America. ICANN may also have an
additional office or offices within or outside the United
States of America as it may from time to time establish.''
There is an obvious difference between the location of a
principal office and the jurisdiction of incorporations. In
short, there is no bylaw restriction preventing ICANN from
shifting its legal jurisdiction of incorporation to Australia,
Belgium, China, Iran, Russia, Singapore, Switzerland, or
---------------------------------------------------------------------------
anywhere else.
Notably, even if the ICANN board thought that it needed to amend
Article 24 to shift legal jurisdiction, that bylaw is a normal
bylaw--not a fundamental bylaw--and could be changed by a two-
thirds vote of the board. The EC could reject this amendment,
but that would require significant opposition among decisional
participants that is not evident from CCWG discussions. In
fact, Annex 12 of the CCWG-Accountability report specifically
includes among the topics of discussion for Work Stream 2:
``Place and jurisdiction of incorporation and operations,
including governance of internal affairs, tax system, human
resources, etc.'' and ``Jurisdiction of places of physical
presence.'' These Work Stream 2 topics were included at the
insistence of a number of members and participants who object
to ICANN remaining a U.S. non-profit corporation. Worth noting
is the fact that the resolution of the jurisdiction discussion
in Work Stream 2 would almost certainly occur after the
transition.\35\
---------------------------------------------------------------------------
\35\ For a more detailed discussion, see Philip S. Corwin, ``The
Irritating Irresolution of ICANN Jurisdiction,'' May 23, 2015, http://
www.circleid.com/posts/20160523_the_irritating_irre
solution_of_icann_jurisdiction/ (accessed May 23, 2015).
An immature organization. One of the hallmarks of an
institution ready for additional responsibility is the facility
with which it handles its existing obligations. Recent events
raise questions about ICANN's willingness to deal with
controversial matters. An instance of note was the decision to
open a new gTLD: the .sucks domain. For obvious reasons, many
intellectual property rights holders objected to creation of
the domain--nobody at The Heritage Foundation, for example, is
overjoyed at the prospect of a ``heritagefoundation.sucks''
domain.\36\ When intellectual property rights holders
complained to ICANN, however, rather than address the issue
directly, ICANN ducked. It referred the question of whether
.sucks was lawful to regulatory authorities in the United
States (where ICANN is incorporated) and Canada (where the
domain name owner of .sucks is incorporated) and asked them to
adjudicate the matter. Both countries quite reasonably declined
to offer their opinions on the matter.\37\
---------------------------------------------------------------------------
\36\ To be clear, though not overjoyed at the prospect, this
discomfort is a small price to pay to preserve the right of free
speech.
\37\ Chris Burt, ``Canada Responds to ICANN on Controversial .SUCKS
New gTLD,'' The Whir, June 17, 2015, http://www.thewhir.com/web-
hosting-news/canada-responds-to-icann-on-contro
versial-sucks-new-gtld (accessed March 15, 2016).
It does not engender great confidence in ICANN that, at the same
time it is seeking greater independence from governmental
authorities, it turns to those same authorities for assistance
in resolving controversial matters within its remit. As the
transition moves forward, ICANN will need to develop the
institutional maturity to deal with controversies of this sort
---------------------------------------------------------------------------
independently.
A community rarely able or willing to unite. The CCWG-
Accountability proposal and the revised bylaws are at the
moment a theoretical product. There is a real prospect that the
Empowered Community--which is at the core of fundamental
accountability for ICANN--may be hamstrung by unanticipated and
unintended consequences of the current structural proposals.
While there are serious concerns about the proposed accountability
revisions themselves, there is an even more fundamental concern
about whether the community can be decisive and united enough
to utilize the accountability measures provided to the EC. The
entire premise of the transition is that the multistakeholder
ICANN community has sufficient maturity and cohesiveness to
serve as a counterweight to the board and the enhanced
influence of the GAC. The CCWG-Accountability development
process engenders real doubts about the foundational
suitability of the community as bedrock for accountability.
To exercise most powers requires the support of three or four of
the five decisional participants. This will be very difficult
to achieve even in the face of substantial cause. Because of
their differing perspectives, if the matter at hand does not
directly affect them, individual SO/ACs could be indifferent
even when the ICANN board and staff are acting in a very
objectionable manner. This is compounded by the GAC's status as
a decisional participant because the GAC is unlikely to be able
to arrive at a common position in a timely manner if at all
unless it changes its procedures to allow EC positions to be
determined by less than a full consensus--a change that
requires only a majority vote under the GAC's operating
procedures. Thus, GAC participation in the EC poses two
potential challenges. First, if the GAC habitually finds itself
unable to arrive at a decision, it would effectively increase
the threshold for EC action by reducing the pool of potential
decisional participants that could support or reject EC action
from five to four. Alternatively, if the GAC changes its
procedures to permit GAC decisions in the EC at less than full
consensus, the U.S. could find itself frequently outvoted with
the GAC supporting or opposing EC actions at odds with U.S.
interests.
If the accountability measures are implemented properly, there will
be avenues, such as the IRP and RFR processes, for righting
ICANN missteps and forcing compliance with agreed procedures
and rules without a decision from the Empowered Community.
However, the most powerful accountability measures are
exercised only by the Empowered Community and are premised on
it's being able to act in a decisive and dependable manner.
Regrettably, the practical challenges of exercising its powers
raise questions about the community's ability or willingness to
fulfill such a role.
Conclusion
Nearly half of the world's population, including almost everyone in
the United States, uses the Internet for business or personal purposes
and pursuits, and it has become a critical vehicle for research,
discourse, and commerce. ICANN plays an important role in maintaining
the safety, security, reliability, and openness of the Internet, and it
is necessary that it remain accountable and transparent.
It is important to note that the proposed transition was not driven
by problems or failings in the current IANA process or the U.S. role in
that process. It was driven by political considerations. In my opinion,
those political concerns are substantial and eventually will require
the U.S. to end its historical relationship with ICANN. But that
transition need not happen this September nor with this particular
transition proposal. Indeed, NTIA and ICANN have repeatedly stated that
it is better to get this transition done right than to get it done
within a specific timeframe.
The proposed changes to ICANN provide numerous improvements and
tools for enhanced accountability, but there are also uncertainties.
The proposal is a blueprint for an accountable institution, but it is
unclear whether the result will be sound or whether the ICANN community
can or will act responsibly and in a timely manner to hold ICANN
accountable.
In short, the adjustments in ICANN's structure and governance model
are significant and untested. ICANN and Verisign are engaged in a 90
day ``parallel testing'' period of the new technical IANA process to
make sure that, if the transition occurs, the new process will be
reliable. Reportedly, Senator Rubio has requested that NTIA consider
extending U.S. oversight role to provide for similar parallel testing
of the new ICANN governance model.\38\
---------------------------------------------------------------------------
\38\ Kieren McCarthy, ``Republicans threaten to derail Internet
transition: IANA contract getting unwelcome attention,'' The Register,
May 19, 2016, http://www.theregister.co.uk/2016/05/19/
republicans_threaten_to_derail_internet_transition/ (accessed May 20,
2016).
---------------------------------------------------------------------------
I agree that the U.S. should take steps to allow ICANN to operate
under the new structure for a period of time to verify that unforeseen
complications and problems do not arise while retaining the ability to
reassert the historical NTIA relationship if unforeseen complications
do arise. The ICANN board suggested such an approach in its public
comment on the first CCWG report:
We believe the Sole Membership Model as proposed has the
potential for changes in the balance of powers between
stakeholder groups in ICANN's multistakeholder model. At any
time, the balance of power and influence among any of the
``groups'' within ICANN can change based upon the willingness
or ability to participate in the Sole Member, changing for
example the balance between governments and the private sector
and civil society. We believe that if the Sole Membership Model
is the only proposed path forward, it may be prudent to delay
the transition until the Sole Membership Model is in place and
ICANN has demonstrated its experience operating the model and
ensuring that the model works in a stable manner.\39\
---------------------------------------------------------------------------
\39\ ICANN board, ``ICANN Board submission of supplementary and
final comments to the CCWG-Accountability 2nd Draft Proposal Public
Comment forum: Summary of Board Input,'' September 11, 2015, http://
forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfj
18SFyc7XR.pdf (accessed May 20, 2016).
The new ICANN similarly would implement changes in ICANN governance
and shifts in the balance of power and influence among groups within
ICANN. A soft extension of the current contract for a reasonable period
of time would allow the community and ICANN to take the new mechanisms
for a sustained test drive to verify to the Internet community that
relies on ICANN that they are working as envisioned. This would not
derail the progress made by the ICG or the CCWG because the ICANN board
has confirmed that virtually all of the recommended changes, including
the new accountability improvements and the EC, would be adopted and
implemented whether the transition proceeds or not. It would therefore
be prudent to maintain U.S. oversight, or at least a means for
reasserting NTIA oversight, for the next two years until the new
structure proves itself and the details of Work Stream 2 are fully
---------------------------------------------------------------------------
developed and their implications understood.
--Brett D. Schaefer is Jay Kingham Fellow in International Regulatory
Affairs in the Margaret Thatcher Center for Freedom, of the Kathryn and
Shelby Cullom Davis Institute for National Security and Foreign Policy,
at The Heritage Foundation.
______
The Heritage Foundation is a public policy, research, and
educational organization recognized as exempt under section 501(c)(3)
of the Internal Revenue Code. It is privately supported and receives no
funds from any government at any level, nor does it perform any
government or other contract work.
The Heritage Foundation is the most broadly supported think tank in
the United States. During 2014, it had hundreds of thousands of
individual, foundation, and corporate supporters representing every
state in the U.S. Its 2014 income came from the following sources:
Individuals 75 percent
Foundations 12 percent
Corporations 3 percent
Program revenue and other income 10 percent
The top five corporate givers provided The Heritage Foundation with
2 percent of its 2014 income. The Heritage Foundation's books are
audited annually by the national accounting firm of RSM US, LLP.
Members of The Heritage Foundation staff testify as individuals
discussing their own independent research. The views expressed are
their own and do not reflect an institutional position for The Heritage
Foundation or its board of trustees.
The Chairman. Thank you, Mr. Schafer.
Mr. Sullivan?
STATEMENT OF ANDREW SULLIVAN, CHAIR,
INTERNET ARCHITECTURE BOARD (IAB)
Mr. Sullivan. Chairman Thune, members of the Committee,
thank you for this opportunity to testify before you today on
the topic of the IANA stewardship transition. My name is Andrew
Sullivan, and I'm Chair of the Internet Architecture Board, or
IAB.
The IAB is an organization that provides a long-range
technical direction for Internet development. We donate our
time in the interest of making the Internet better, and because
we donate our time, we usually have an employer. Mine is Dyn.
It is an Internet performance management company with its
global headquarters in New Hampshire. But I'm not speaking on
its behalf today.
Because of my two roles, my daily work relies on dependable
IANA functions. Nearly 50 years ago, the United States
government kicked off the project that led to the Internet. It
trusted technical people to come up with a new communications
medium that offered greater efficiencies, cheaper operation,
and a reliable system made out of unreliable parts. The
technical community delivered. Today, we have an almost magical
technology that is a powerful engine of the U.S. economy, a
technology on which much of the world relies and which is
designed to minimize central points of failure and control.
The Internet only functions because all the independent
networks that make it up cooperate voluntarily without central
control or authority. This fact is why it is essentially
impossible to take over the Internet and why it is so
convenient, not necessary, but convenient to have people keep
choosing to use the IANA registries. It makes interoperation
among the various networks easier.
Today, the Internet community is on the cusp of eliminating
needless involvement of the U.S. Government in IANA by
operating this part of the Internet the way everything else on
the Internet already operates, through private sector led
cooperation. The proposal is complete, prepared. It has
achieved consensus in the global Internet community. It is
overdue, and now it needs to be implemented.
The NTIA's involvement in IANA causes two kinds of
problems. First, it means that the normal evolution and
operation of IANA has to work at government speed, not Internet
speed. Second, it gives other countries the opportunity to
blame the U.S. Government for problems it does not cause. There
is a simple solution to all of this. Let the community of IANA
experts manage this function themselves. They know how to do
it.
Despite what some people claim, the proposal doesn't really
change that much, because every single change in the proposal,
even every change to ICANN, ultimately relies on some system or
organization that exists today, whether it be the Internet
Engineering Task Force or the regional internet registries or
the supporting organizations and advisory committees that ICANN
already uses to make all its policy. We operational communities
have enormous interest in making sure things will work after
the transition, because we are the ones who will have to
respond if we are wrong.
Some people seem to think the transition is happening in a
rush. This is the slowest moving rush in history. Plans to get
the U.S. Government out of this role have been around since
1998 when the founder of Facebook was 14 years old. There is
simply no reason to wait or to do things in multiyear phases
that appear only to be delaying tactics designed to create
frustration in the community and thereby erode this consensus.
Any phased approach wouldn't be a real test of the system
anyway, so it would add delay and risk for no reward.
For businesses that depend on the Internet, such as my
employer, Dyn, delay would threaten the functions we rely on to
make our products and to provide jobs to our employees. Delay
would signal to those who want to control the Internet that the
U.S. Government does not believe the Internet really works as
designed, and it would tell the global Internet community that
its historic consensus around this proposal is meaningless.
We have a plan. It is a good one, and it meets the tests
set out by the NTIA. It aligns responsibility with
accountability, avoids the use of governmental authority when
agreements among affected parties will serve the same purpose.
There remains, of course, careful work to be completed in
bringing the proposal to fruition, but my colleagues on the IAB
and I remain completely engaged in the effort to see this
through.
This is a tremendous chance for the United States to show
the world its leadership in understanding that the Internet is
robust and designed not to be captured, that even if other
governments wish to control it or bend it to their will, the
Internet is a system inherently resistant to those wishes. I
urge you to lead us that way and show the world what tremendous
ingenuity harnessed to voluntary cooperation can give to all of
us.
Thank you for your kind consideration, and I look forward
to any questions you have.
[The prepared statement of Mr. Sullivan follows:]
Prepared Statement of Andrew Sullivan, Chair,
Internet Architecture Board (IAB)
Chairman Thune, Ranking Member Nelson, and members of the
Committee:
I thank you for the opportunity to testify before you on the topic
of the transition of key Internet functions to the global Internet
community. This is an important issue for the Internet, and I very much
appreciate your thoughtful attention to the topic.
1. Introduction
My name is Andrew Sullivan. I am the Chair of the Internet
Architecture Board (IAB). The IAB provides long-range technical
direction for Internet development, ensuring the Internet continues to
grow and evolve as a platform for global communication and innovation.
We are chartered as both a committee of the Internet Engineering Task
Force (IETF), and an advisory body of the Internet Society. There are
13 members of the IAB, all selected by the IETF community and each
donating time in his or her individual capacity: we do not represent
our employers or other groups. Because the IETF depends on our donated
time, we normally have other employment, too. In my case, I work for
Dyn, an Internet Performance Management company with its global
headquarters in New Hampshire. Dyn's products and services depend on
the global Domain Name System (DNS) and the global routing system: a
destabilized Internet Assigned Numbers Authority (IANA) would be
extremely bad for Dyn's business. Today, I offer you my personal views,
which may not reflect the views of Dyn.
One of the tasks of the IAB is to act as the interface between the
IETF and the rest of the world, and in that capacity the IAB oversees
certain IANA registries. Because of this, I have been closely involved
in the discussions about IANA's future since before the National
Telecommunications and Information Administration's (NTIA) announcement
of the transition in 2014.
I come to this topic primarily as someone whose daily work relies
on dependable IANA functions. In my IETF and IAB work I have had
countless interactions with IANA staff and the registries. In my Dyn
work, my colleagues and I depend on IANA. I believe the IANA transition
is about ensuring the health of the Internet.
In my view, the proposal to move the stewardship of the IANA
functions to the Internet community is a good proposal, for three
reasons. First, IANA's quite properly limited function works well for
the Internet; but IANA is unfortunately less efficient than it could be
because of the involvement of NTIA. Second, the transition makes
limited changes that provide continuity with the way the system has
been working at least since the founding of the Internet Corporation
for Assigned Names and Numbers (ICANN). Finally, the proposal to make
the transition is complete, and prepared, and has the support of the
global Internet community; therefore, it needs to be implemented now.
2. Background on the Transition
In March of 2014, NTIA announced \1\ its intention to move the
stewardship of IANA to the Internet community. In accordance with
NTIA's request, ICANN convened stakeholders with an interest in IANA's
operation. The result was the formation of the IANA Stewardship
Transition Coordination Group (ICG) in July of 2014. The ICG in turn
asked the communities who regularly populate IANA registries--the
operational communities--each to prepare a proposal about how to effect
the transition for the relevant IANA registries.
---------------------------------------------------------------------------
\1\ https://www.ntia.doc.gov/press-release/2014/ntia-announces-
intent-transition-key-internet-domain-name-functions
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Each operational community prepared its proposal, and they were
assembled into a whole (and checked for coherence) by the ICG. Each
operational community reported its consensus \2\ and degree of support
to the ICG. The ICG reported its unanimous support of the proposal in
March of this year, and the ICANN Board transmitted the proposal to
NTIA shortly thereafter. It is that proposal, along with an associated
set of proposed accountability changes for ICANN, that NTIA is
examining.
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\2\ In the technical world, ``consensus'' does not have quite the
meaning that it usually does in legislative contexts, but it is still
very strong. When we say we have reached consensus, we mean that the
objections have all been considered and either addressed or found not
to override other considerations about the system. See for instance RFC
7282, available from https://www.rfc-editor.org/rfc/rfc7282.txt.
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Before turning to the substance of the proposal, it is worth
pausing and asking why the proposal was developed this way, with so
many groups involved. The answer lies in the nature of IANA and the
Internet.
One of the important ways that the Internet differs from other
telecommunications technologies is in how much it depends on voluntary
co-operation. The Internet is a network of networks (of networks, and
so on), and each network operates more or less independently. The
networks co-operate with one another, without a lot of central co-
ordination, because it is in their independent interests to do so. In
this way, the Internet is something like a market economy: people trade
(goods in the economy, ``packets'' on the Internet) because they each
get something out of it. In my view, it is the very alignment of each
operator's interests with the outcomes that has allowed the Internet to
grow and flourish, such that it is a dominant communications technology
of our time.
In a centrally-organized and centrally-operated system, controls
over how people configure systems would be imposed by the center.
Centrally-managed systems tend to be expensive or hard to operate (or
both) when they get very large. But the Internet is distributed,
because in a network of networks there is no center. In a distributed
environment, it's often easier if one has clues about how to get
started interoperating with others. Those clues are the IANA
registries. They fall into three broad categories, which I describe
below.
To begin with, internetworking means that data (in the form of
packets) are shared among independently-operated networks. To allow
data packets to get from other networks to yours, it is necessary to be
able to tell others what networks you are operating. To make that work,
when you say, ``I'm running this network,'' everyone else needs to know
what ``this network'' means. The way we do that is to use a common set
of numbers to represent the networks, and to use a common set of
numbers it is convenient to maintain a starting-point list--a registry.
IANA maintains the top-most of these number registries. IANA uses
policies that work in tandem with the Regional Internet Registries
(RIRs), who are directly responsible for managing the number resources
in various geographic regions. Ultimately, when you connect to the
Internet, you get an Internet Protocol address from your Internet
Service Provider (ISP), who got their pool of addresses from an RIR,
who originally got their share of the global pool from IANA. This
distributed way of working ensures that there is not a single large
bureaucracy in charge of all Internet addresses.
Second, to make it easy for the various networks to connect to and
operate with one another predictably and reliably, they can use common
mechanisms configured in a particular way. The mechanisms are called
``protocols''--such as those the IETF creates. Protocols do not contain
all the instructions for configuration, so, it is necessary to know how
to configure a protocol for use on the Internet. For instance, when you
go on the Internet and look at cat videos, your computer knows to show
you a video as opposed to opening a spreadsheet because the cat video
comes with a protocol parameter called ``media type''. It is convenient
to have a single place to look up the configuration settings for these
different protocols. Depending on who defines the protocol, the
definition of the agreed-upon settings might come from different
actors, but everyone writes them down in a shared place. That shared
place comprises the protocol parameters registries; publishing them is
another IANA job.
Third, names that are assigned on one network won't be any use to
those connected to other networks unless the other network users know
how to get to those names. It is no use to know that you want to reach
``mail-server'' without knowing whether it's the Senate's mail server,
or your ISP's, or Dyn's. To know that, it is convenient to have a place
to start looking for a name on the Internet. Mathematically, a way to
do that (and one that is not too hard to implement in computers) is a
tree structure, which by definition starts from a common root. We do
this today in the DNS. Maintaining the registry of the common root
(also known as the ``root zone'') is IANA's third job, which it does
according to policies established by the multistakeholder processes in
ICANN.
Note the emphasis above on how these arrangements are
``convenient''. We could make the Internet in a different way. People
have designed and deployed systems that did away with some or all of
the IANA registries, in favor of other approaches. But IANA is the
system we have now, and the one that got the Internet this far. Note as
well that the contents of these registries are specified by someone
other than IANA. It is those communities of IANA users--the
``operational communities''--who were involved in preparing the
different parts of the ICG proposal.
One other point about IANA is critical to keep in mind: just like
everything else on the Internet, use of it is voluntary. The Internet
has no compliance department and there are no protocol police, because
each constituent network that participates in the Internet is
independent. On your network, you make your rules. Networks use IANA
functions because those functions are useful. Of course, this also
means that if they cease to be useful, or if the cost of relying on
IANA is greater than the benefit it provides, people will find another
way to operate their networks. You can only build the Internet with
carrots: sticks do not work.
3. The Limited IANA Function Works Well
IANA's tasks are not policy functions; they are important,
specialized functions, but they are not a locus of control of the
Internet because the Internet by its nature is designed not to have
such controls. The decisions about how these registries are to be
populated belong with others. This division of responsibility works
well, and the ICG proposal only serves to make that division clearer
and more explicit.
Each operational community provides the contents of and policies
for the registries with which it is concerned. The IETF is responsible
for the protocol parameters registries it creates, and it is also the
body that creates the protocols that use those registries. The RIRs are
closely involved in number resource policy, and they are in turn
responsible to their communities of members--the very people who depend
on the numbers distributed by the RIRs. And finally, the root zone
registry is maintained according to the multistakeholder processes that
ICANN uses. Naturally, none of these processes (which are designed and
operated by humans) is perfect. But they each have the conspicuous
advantage that the technical interest in making the Internet work
aligns with participation in ensuring that the registries perform their
technical function. The Internet works well when the managers of
resources feel the effects of their management decisions.
When requests come to it, IANA makes sure that the requests are
well-formed, that requests conform with the policies for the registry,
and so on. In this sense, IANA functions are narrow and limited in
scope. This is not to suggest they are unimportant, but rather to state
that the technical functions that IANA provides are specialized, and
are not a source of control over the Internet.
The processes in question, and the communities involved in
operating these processes with IANA, are mature and robust. We have
been operating this way for more than 15 years, which is practically an
eternity on the Internet. During that period, of course, various
improvements and adjustments have happened; but the basic model has not
changed very much.
There is one small current problem, and that is the ongoing
involvement of the U.S. Department of Commerce through the NTIA. This
is not to impugn the NTIA's staff, but instead to admit that its
involvement at this stage is incongruous with how the Internet works.
The reason it is problematic is that, unlike the operational
communities involved in overseeing the different registries, NTIA is
not itself primarily an operator of any Internet infrastructure;
neither does it have any special expertise about the Internet that
cannot be found among the operational communities.
There are two issues that result from the involvement of the NTIA.
The first is that there is an extra party involved in all the IANA
accountability arrangements, which means that the accountability is not
as transparent as it ought to be. Worse, it sets up the U.S. Government
as an impediment to the natural evolution of these key Internet
functions, because changes to them invoke all the machinery of
government bureaucracy before they can take effect. The arrangement
forces IANA to work at government speed, not at Internet speed.
The second problem is that the presence of the U.S. Government in
approving some IANA actions gives other countries the opportunity to
blame the U.S. Government for problems that it does not cause. NTIA's
approval function sometimes includes changes that directly affect
country code top-level domains, and one sometimes hears claims that a
response to an emergency on the Internet was held up by NTIA. This
perception--even if it is unwarranted--potentially gives other
countries an argument that IANA should be controlled by an
intergovernmental body, as though a delay introduced by one government
could be made shorter by adding all the other governments in the world
to the task. The obvious answer, instead, is to let the people who need
this service--the operational communities--manage it themselves. They
are ready to do it, and have a proposal that has achieved global
consensus on how to make that happen; so now is the time to make the
transition.
4. The Transition Proposal Brings Minimal Change
One of the open secrets about the Internet is how little the people
who actually operate networks and services like to change things. The
first rule of being ``on call'' is to avoid getting called, so
operators do not like to make changes unnecessarily.
Yet successful operators also know that maintenance is critical. In
order not to have a large problem later, you must constantly remove
unneeded code and functions that are no longer really necessary, but
are there because they were always there. Systems that do not get good,
regular maintenance are called ``crufty'', and they're just as ugly as
that word sounds.
The proposal to move the stewardship of IANA to the Internet
community is good, conservative maintenance. It eliminates a feature
that is no longer really necessary, because the functionality is
already provided in another, more efficient way. Also, the whole
transition proposal was developed using the same inclusive, bottom-up
mechanisms that daily bring us the Internet. The proposal aligns
responsibility with accountability, and avoids the use of governmental
authority when agreements among affected parties will serve the same
purpose. It provides a practicable solution to a practical problem, and
only makes changes where necessary to achieve the practical goal.
Consider the parts of the proposal. The IETF came together to
develop the part of the proposal related to protocol parameters
registries. It did this using the same mechanisms it uses for
everything else: it chartered a working group in which anyone could
participate (IANAPLAN). The working group proceeded as these groups
always do--they work in public to create a document and determine what
rough consensus emerges. The IETF achieved rough consensus on the
IANAPLAN draft, so it became a part of the final proposal. The protocol
parameters portion of the proposal changes so little in the IANA
arrangements that the IETF decided to implement the proposal using
ordinary supplemental agreements that the IETF and ICANN undertake
approximately every year. This is in spite of the fact that the IETF
makes far more use of IANA than any of the other operational
communities, because there are thousands of protocol parameters
registries and hundreds of changes processed every month. The IETF-IANA
interaction works well.
To create the numbers portion of the proposal, the RIRs created the
Consolidated RIR IANA Stewardship Proposal (``CRISP'') Team to create a
single proposal approved by all the RIRs. This part of the proposal is
little more than a contractual formalization of the arrangements that
the RIRs already have with ICANN for operating of the numbers
registries. The most significant innovation is the ability of the RIRs
to change the IANA operator for numbers registries. But that innovation
is hardly ground-breaking: it is just a standard relationship between a
service provider and its customer. Accountability that depends on
market mechanisms instead of governmental regulatory power has been
effective in other parts of the Internet, so there is no reason to
suppose it will not be successful in this case too. Indeed, this is the
very sort of extremely successful relationship that the IETF has with
IANA.
At first glance, it might appear that the names portion of the
proposal changes a lot more than the other portions. It creates a
number of new bodies, and depends on some fairly significant shifts in
ICANN's corporate accountability structures. The changes are, however,
less radical than the first glance would suggest. There are three
reasons for this.
First, because ICANN to date has contained both the policy function
for names and the IANA function, it has not always been clear to people
which function of ICANN was involved in any given discussion. So, the
names proposal makes the distinction explicit, by creating a Post-
Transition IANA (PTI) that will be used to contain the IANA functions.
Making clear a line that was blurry is not radical, but is instead a
hallmark of good system design. And this clarification is an
improvement in the stability of IANA, because it protects IANA from
being drawn into the policy discussions that ought properly to go on
inside the ICANN multistakeholder community.
Second, while the accountability changes appear large, they
actually depend entirely on the already-functioning advisory committees
and supporting organizations that ICANN uses for all policy
development. Past accountability relied on NTIA's ability to enforce
its contract with ICANN to regulate ICANN behavior. Under the new
arrangements, that enforcement function lives with the community of
people who are most affected. To perform that function they must have
the necessary powers, and so the names proposal depends on the newly-
empowered community. We already know what that community is like,
because it comprises the very same structures that ICANN has relied
upon for many years.\3\
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\3\ The current arrangements have evolved over time, so it would
not be correct to claim that the structures have been around for the
lifetime of ICANN. Nevertheless, the basics of the current structure
were mostly established by the early 2000s, and it is no exaggeration
to say that the proposal is primarily relying on structures that are at
least as old as Facebook or Twitter--practically geologic age on the
Internet.
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Third, the names community proposal mimics the successful
relationship between the IETF and IANA, and thereby ensures the
operation of all the IANA registries along the same lines.
The overall effect is to provide continuity with the way that
things have actually worked for many years, to align IANA stewardship
with the way things happen on the Internet more generally, and to make
changes only if they are rooted in already-operating structures and
bodies.
5. It Is Time to Act
It might be tempting to think that the transition should not happen
according to the current timeline, on the grounds that it is happening
in a rush. If this is a rush, it is a slow-moving one. Since the
original ``White Paper'' in 1998,\4\ the plan has always been for the
U.S. Government gradually to step out of this function, partly on the
grounds that the users of the Internet knew better how to ensure the
necessary accountability.
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\4\ https://www.ntia.doc.gov/files/ntia/publications/dnsdrft.txt
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More recently, NTIA's announcement about this stage of IANA's
evolution was fully two years ago. In the intervening time people from
all over the world have debated and evaluated the various proposals and
come to consensus. They have put in countless hours in reading and
writing proposals, corresponding with one another, and attending
meetings both virtually and in person. The proposals we have are
developed and mature, and they are founded on mechanisms and bodies
that have been tested for years.
Under the ICG proposal, IANA will mostly continue to work the way
it always has, and the work will continue to be done by the same
professionals who have been doing it. The main functional changes are
the removal of a formal approval step by the U.S. Department of
Commerce, and the elimination of a zero-cost contract let by the United
States Government. Because of the process that led to the transition
proposal, people all over the Internet have come to expect the final
step in completing the work started in the era of the ``White Paper''--
a time when the World Wide Web was not even ten years old, and before
Wikipedia had been established. The Internet has waited long enough.
There is a proposal that has found consensus and that is workable. Now
is the right time to proceed with this transition.
In an abundance of caution, some have suggested that the transition
proceed in phases. It is not clear, however, how that would help
anything. A phased deployment would not actually be a test of the
eventual IANA arrangements. Instead, it would test a different set of
arrangements every time a new phase started, and each phase would
introduce a change (which necessarily brings some risk). So, a phased
approach will not be a good indicator of how the eventual IANA
structure would perform, and would introduce heretofore uncontemplated
risks. From a technical point of view, it would be safer and better-
advised to proceed with the transition of the IANA all at once. In any
case, a phased approach is transparently an attempt to create time to
undermine the remarkable global consensus reached on this proposal. A
consensus this broad will be frustrated and fragile when faced with
delay, and such a delay would represent an attack on the global
multistakeholder community.
For businesses that depend on the Internet, such as my employer
Dyn, a delay now would send a terrible message. It would introduce
uncertainty into the fate of the functions we rely on to make our
products, to make our company grow and thrive, and to provide jobs for
more than 400 people worldwide. More generally, a delay in the
transition outside the process already underway would support the
efforts of those aiming to cast doubts on the commitment of U.S.
Government to carry through on the plan--first articulated in 1998--to
transition out of its involvement in the IANA function, as well as the
more recent request made by the NTIA to the Internet community to come
up with a plan. It would signal to governments that want to control the
Internet that the U.S. Government does not believe the Internet is
resistant to those controls. Finally, it would undermine the
multistakeholder processes that have been a foundation of the
Internet's success, by telling the global Internet community that its
historic, worldwide consensus around this proposal is meaningless.
6. Conclusion
The ICG's ``Proposal to Transition the Stewardship of the Internet
Assigned Numbers Authority (IANA) Functions from the U.S. Commerce
Department's National Telecommunications and Information Administration
(NTIA) to the Global Multistakeholder Community'' \5\ meets the tests
set out by NTIA. The proposal is a practical way to allow the
government to step out of a function it does not need to perform, and
ensure that IANA continues with business as usual. A limited IANA works
for the Internet now, and will continue to do so essentially unchanged
in the future. While there are some inevitable changes proposed to
enable the transition, they are all based on foundations that are both
already working and in line with how the rest of the Internet already
functions. The Internet has been waiting a long time for this step to
be taken. Delaying brings no benefit and it might itself bring harm.
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\5\ https://www.ianacg.org/icg-files/documents/IANA-transition-
proposal-final.pdf
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There remains, of course, careful work to be completed in bringing
the proposal to fruition. But execution of a plan that requires months
to complete is not improved by the addition of more time. It is,
however, improved by the addition of more dedication to see the plan
through to its faithful and complete end. Working with others across
the Internet community, I believe that we shall together see that end.
Nearly 50 years ago, the United States Government kicked off the
project that led to the Internet. It trusted technical people to come
up with a new communications medium that offered greater efficiencies,
cheaper operation, and a reliable system made out of unreliable parts.
The technical community delivered, and today we have an almost magical
technology that is a critical engine of the U.S. economy--a technology
on which much of the world relies, and which is designed to minimize
central points of control and failure. Today, the Internet community is
offering to eliminate a needless involvement of the U.S. Government,
and to operate this part of the Internet the way everything else on the
Internet operates: by private-sector-led co-operation. This is a
tremendous chance for the United States to show the world its
leadership in understanding that the Internet is robust and designed
not to be captured--that even if other governments wish to control it
or bend it to their will, the Internet is a system inherently resistant
to those wishes. I urge you to lead us that way, and show the world
what tremendous ingenuity, harnessed through voluntary co-operation,
can give us all.
My colleagues on the IAB and I remain fully engaged to ensure
timely completion of this effort. I thank this Committee and its
Members for your kind consideration.
The Chairman. Thank you, Mr. Sullivan.
Mr. DelBianco, your prepared testimony states that the
power of governments will not be increased under the transition
proposal, but Mr. Schafer's testimony states exactly the
opposite, that government power is, and I quote,
``significantly increased.'' So the question is for both of
you. While you were both in the same room when this agreement
was being negotiated, you have fundamentally opposing
conclusions about the weight of government power in this
proposal, and I'm interested in how you think senators ought to
assess that.
Mr. DelBianco. Thank you, Chairman Thune. I'll go first.
Brett from Heritage and I were both instrumental in drafting
it, and there's a different interpretation of what we've done
by empowering the community. When the U.S. created ICANN, we
established a Governmental Advisory Committee as one of the
formal committees of ICANN.
I mean, if I had to stand before you today and say, ``Of
all the stakeholders in the world, governments don't count at
all''--you represent your states and your nation. You want
governments to have a role at ICANN, and they have a role. But
it need not be a special role. It's a multi-equal role, just
alongside civil society, the engineering community, the
business community that we represent, and as such, that
community gets one of the votes among the community when it
comes to deciding whether the community is going to challenge
ICANN's Board's decisions, or they're going to block a budget,
or actually spill the entire Board of Directors.
But when it comes to challenging decisions that arise from
government advice, we drew the line. We said that government
advice must only be adopted by governments within the absence
of an objection. So the U.S. Government role can block
government advice that violates our values.
Second, when the Board of ICANN acts on government advice,
and the community wishes to challenge that advice, we can't
allow governments to block our ability to challenge it. So we
carve them out. We exclude the governments from having a vote,
if what we're challenging is the Board's adoption of government
advice.
On net, I think it's unquestionable that we have cabined
off the government power, not increased it at all. And if you
listen to the foreign governments, among them Brazil and Spain,
and I gave you the quote from France, the governments complain
that they've been disadvantaged vis-a-vis the private sector in
this transition.
The Chairman. Thank you, Mr. DelBianco.
Mr. Schafer?
Mr. Schafer. Thank you. Well, Steve answered the question.
The governments will have powers that they currently do not
have under the new ICANN structure. Currently, the role of
governments is solely to be a member of the Government Advisory
Committee that may provide advice to the Board. It has no
votes. It has no power. It doesn't decide a budget. It doesn't
decide to spill directors. It doesn't appoint directors.
Under this proposal, it will do all those things. It will
have an equal vote with other parts of the community that it
currently does not possess. And, furthermore, the safeguards
that we put into the GAC carve-out--which I appreciate and I
fought hard for in this transition to try and insert some
protections--leave out carefully--nuances.
First, the decision over whether the GAC carve-out applies
is dependent on the Board. The Board alone is empowered to
decide--and I'll quote the new draft bylaws here--``whether it
is determined that the GAC consensus advice was a material
factor in the Board's adoption of the resolution.'' So the
Board decides whether the GAC consensus advice actually fit
into the resolution or not.
There's also no restriction on including the GAC advice in
something broader in terms of the resolution, that the
community very well might want more than it resists whatever
that GAC advice it wants that otherwise might be objectionable.
That combined sort of resolution is not prohibited under the
current bylaws.
While the GAC consensus requirement applies to advice to
the Board, it does not apply to GAC decisions within the
Empowered Community. The U.S. might find itself very easily
outnumbered in a vote in the GAC on a decision that the GAC
raises inside the Empowered Community. The GAC's decisionmaking
processes are guided by Operating Principle 47, which currently
says that they're going to try and operate by consensus. But
they can change that rule by a majority vote at any time they
want to.
So, in short, governments have powers that they don't have
currently. They have the ability to expand their use and their
voice inside the Empowered Community, which they might not
under the current consensus proposal, but they can change that,
and the GAC and the Board itself can manipulate the process to
determine whether GAC consensus advice is going to be applied
in terms of the GAC carve-out. So it can be done and
manipulated to the Board's pleasure for that purpose as well.
The Chairman. Mr. DelBianco and Ambassador Gross, both of
you have extensive personal experience in the Internet
governance space and both of you see value in the current
transition proposal moving forward this year. Mr. Schafer has
called for extending the IANA contract for an additional 2
years to help prove out the new ICANN structures, which, on its
face, I have to say doesn't seem to be an unreasonable
proposal.
So the question for either or both of you is: What is the
harm in taking a little more time before finalizing the
transition?
Mr. DelBianco. Mr. Chairman, as I indicated in my opening
remarks, that sends the signal that the U.S. is not serious
about the entire multistakeholder process that we charged with
the mission of coming up with a transition proposal. Some of
Heritage's ideas surfaced during the multistakeholder process
of 2 years, and they failed to gather support. Some of
Heritage's interpretations of government power were argued
strenuously and very few agreed.
So I think what we would signal by a delay is an indication
that we want to relitigate this, that certain elements want to
change the proposal from what the community came up with, and
that's a direct slap in the face of a community that has worked
for 2 years on this proposal. Now, the effort of the community
is of no consequence if the product of our work was not
appropriate. And you have heard from all members of the
community that support the notion of what we've come up with,
that it strikes the right balance.
Let me also add that any delay could not be positioned as
if it's a test drive. Think about that for a second. The powers
the community has are extraordinary powers. We would only
invoke the power to block a budget, block bylaws, or spill the
Board if the Board acted in a completely inappropriate way. It
could be a decade before we even exercise that muscle within
ICANN. There's no test drive component involved.
In fact, there's no coverage provided by the United States
that could be better than the coverage we have in California
courts. What we've designed gives the community for the first
time ever the power to go to court in California to force the
Board to follow the community's consensus, to spill the Board,
if that's our consensus, and to overturn a budget that the
community doesn't support. That's the kind of backstop we need,
and we have it in the California courts.
Ambassador Gross. Thank you, Mr. Chairman, for that
question. I think it's understandably confusing as to where the
truth lies, because, clearly, there are many competing
interests here. Having said that, based on my long now and
painful sometimes experience in the international community on
the issues about the role of governments and the like with
regard to the Internet, I think the process going forward is
clear.
If the U.S. Government steps in, as, clearly, they could,
and seeks a delay of a year or two, it will be viewed as the
role of government preempts the multistakeholder process, and
it will be seen by the international community as proving that
which many in Russia, China, and others have said to me and to
many others, that this ought to be the province of governments,
and the governments ought to decide these issues, not the
multistakeholder community. I think that would be a tremendous
failure for all of us, for all of us who have worked so hard to
make sure that U.S. leadership focused on the importance of the
multistakeholder environment and that the leadership there is
used throughout the Internet community.
I look in terms of what the reaction of the international
community after Marrakech when ICANN came forward with its
proposal, and the reactions by governments was very clear. I
think one of the market-based tests that we can use as to what
the views of the international community, in particular, the
governments are is by what they say. They told many of us
privately that they feel they got rolled, that the
international governments got rolled on this, that they got
boxed in and lost.
I don't think that's an unfair characteristic. I think the
international multistakeholder community did, in fact, rise up
and minimize the role the governments sought to play going
forward in ICANN. And the very next month, Russia, China--the
foreign ministers of Russia, China, and India issued a
statement--the foreign ministers--saying that the need to
internationalize the Internet governance and to enhance in this
regard--the role of the ITU. So they are already moving past
ICANN, recognizing it, and going to looking to the ITU for
their approach for Internet governance.
The Chairman. Thank you, Mr. Gross.
Senator Schatz?
Senator Schatz. Thank you, Mr. Chairman.
Mr. DelBianco, I want to get some clarification on how the
process would work in the case that the United States was, in
Mr. Schafer's words, outnumbered on the GAC making a
recommendation to ICANN. My understanding is that there's a
mechanism to prevent that from mattering, essentially. But I
want you to walk us through the process, because it was sort of
a quick exchange and I want to make sure we totally understand
what would happen if GAC--if there were a non-consensus
recommendation made to ICANN that was determined not to be in
the United States' best interest.
Mr. DelBianco. Thank you, Senator Schatz. One of the first
things we did was to introduce a stress test to make sure that
if the GAC were to change away from full consensus, there would
be no obligation for ICANN's Board to try and find a mutually
acceptable solution. Done. We fixed that.
So you're going into another case, which is let's suppose
that the governments together decided they wanted to offer
certain other kinds of advice that's non-consensus advice in a
situation where the U.S. and its allies might be outnumbered.
If that advice arrived in the form of a letter to ICANN's
Board, the ICANN Board has no obligation, no special obligation
at all, to consider or implement that advice.
But if it were to do so, the entire community is able to
use the power to overturn Board implementation and Board
actions that violate ICANN's bylaws, and therein lies the
protection. As Mr. Beckerman explained, there are tight
provisions limiting the mission of ICANN so that we can go
after that.
Senator Schatz. Just to be clear, GAC is advisory in the
first place. If GAC makes a recommendation--excuse me--if a
faction within GAC makes a recommendation that is contrary to
the United States' interests, ICANN doesn't have to do anything
with it. If they did, and it was contrary to the bylaws, it
would be overturned as a matter of interpretation of the
bylaws. Is that correct?
Mr. DelBianco. Any party that felt aggrieved by the Board
following that non-consensus advice can file an independent
review process. That's invoking an independent review based on
ICANN's bylaws and Articles of Incorporation. Oh, and by the
way, the full community can also file an independent review.
Mr. Schafer likes to suggest that that community might be
thwarted if the governments didn't want to go along, but we
don't require unanimity. So if the governments alone didn't
support the idea of challenging the Board's adoption of their
own advice, they can't block it at all.
Senator Schatz. What about this assertion that there's the
possibility for mischief or the manipulation of the process in
the interpretation of the GAC advice, that the ICANN has to
come to some sort of determination that the advice was arrived
at in a certain way? Can you address that?
Mr. DelBianco. Yes, thank you very much. So if the Board
received advice from the GAC and was acting on that advice, the
Board has some leeway to interpret whether their action was
based mostly on GAC advice or not. But this is neither here nor
there. No matter what action the Board takes, whether it came
to them in a dream or GAC advice, if they take action that's
contrary to the bylaws, any aggrieved party, the business
community, civil society, the technologists, or the entire
community can come together and challenge that as against
ICANN's bylaws and Articles. Therein lies the power we have
never had before and that we'll be able to exercise in
California courts. That's the safety belts that we're putting
onto this engine.
Senator Schatz. Ambassador Gross, I have a question for
you. There were a number of people--and I think this is a fair
statement, that if there were a two-year delay, it would
indicate a desire to relitigate this. But I want to go a little
big deeper. What is the practical impact of that on the
Internet? I mean, we're talking in acronyms, right?
But for the public who wants to be assured that the
Internet is growing, not just in the United States, but this
network of networks continues to grow, and understanding for
those of us who are watching this that there are some sort of
incorrigible countries and there are some free countries and
there are those in between that are making judgments sort of in
real time about the extent to which they're going to be
connected to the real Internet or essentially have a country-
based intranet.
So what would be the practical impact of a two-year delay
in terms of that decisionmaking and sort of our geopolitical
negotiations?
Ambassador Gross. Thank you. I think the clearest impact is
not necessarily on the operations of ICANN itself, but rather
on the broader global community. It will signal very, very
clearly that the United States has changed its position, that
the United States no longer believes firmly in a
multistakeholder, private sector led Internet, but rather
believes that the government and governments, therefore, play
the primary role of making the final decision. Russia, China,
and others will welcome such a decision.
Senator Schatz. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Schatz.
Senator Fischer?
STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA
Senator Fischer. Thank you, Mr. Chairman.
Mr. DelBianco, if I understood you correctly in your
previous comments and then earlier in your testimony, when you
mentioned safety belts and when you talk about the community,
was my interpretation of this correct in that the community
can, in effect, dismiss or, in your terminology, spill the
Board? Just a short answer.
Mr. DelBianco. Short answer is yes, Senator. Just like any
corporation, the shareholders can spill the directors for doing
the same thing.
Senator Fischer. OK. So it seems like the community has
quite a bit of power here. How does government fit in? Does
government fit in your plan at all, or does the community have
veto power over government?
Mr. DelBianco. Governments are one of the multistakeholders
that the U.S. created when we designed ICANN, and they are one
of them.
Senator Fischer. But it doesn't have to be a unanimous
decision? Did I hear that correctly?
Mr. DelBianco. It does not. We deliberately avoided
unanimity so that no single entity could block a community
decision.
Senator Fischer. Including government?
Mr. DelBianco. Including governments. They cannot block any
decisions that are supported by the rest of the community
members.
Senator Fischer. Mr. Schafer, what do you think of that?
I've seen you kind of smile and nod through this conversation.
So what do you think of that?
Mr. Schafer. Well, it's--in essence, the discussion that
was just occurring before was apples and oranges. We were
talking about expansion of government authority in the ICANN,
and that is indisputably the case. Governments will have more
power in the ICANN that is post-transition than is currently
the case. They will have votes that they didn't have before.
They will be able to make decisions that they weren't able to
before. They will be non-purely advisory, which they are purely
advisory now. So that was the discussion happening over there.
There was also a discussion about how the GAC carve-out
would work, these protections against the GAC having two bites
at the apple, being able to pose something to the Board and
then going to the community and having a vote there on their
own advice. And that also has a loophole, because it is up to
the Board's discretion to determine whether the GAC advice
materially affected or whether they came up with that on their
own or whether they just would prefer to have the GAC be in a
vote in the Empowered Community as well as being responsible
for the resolution in the first place.
So those discussions are not necessarily the same as the
safeguards and how the Empowered Community works. In the
Empowered Community, the GAC has one vote among five. The way
that the process works, you generally require at least three
votes, sometimes four, to either block or to approve a decision
that is being made within the parameters of the Empowered
Community. So that's true. The GAC will have one vote among
those.
But whether that's going to be readily available or
effectively used by the community is hard to say. The community
is a very fractious body. It very rarely comes to consensus on
very many things. The different parts of the organization,
different parts of the community, have very specific focuses on
the mandate and the topics that are going to be discussed in
ICANN. Sometimes they may not have any equities whatsoever and
may choose not to involve itself whatsoever, even though one
party may be horribly abused by the Board decision. So that's
part of that process.
So my whole proposal here is we need--yes, we're not going
to be able to have everything tested out----
Senator Fischer. But you'd make a little more time to see
how this all tested out.
Mr. Schafer.--but in 2 years, we'd be able to have the
community sort of stretch out, examine how the process is going
to work, familiarize itself with it. And we should have more
confidence in how it's going to work after that.
Senator Fischer. I had a couple of other directions I
wanted to go here, Ambassador Gross. As Mr. Schafer notes in
his written testimony, today the United States does have the
exclusive use of dot-mil and dot-gov, the domains, and I'm
concerned about security risks that could result if this
exclusive use cannot continue after the transition takes place.
So what, if anything, does NTIA or ICANN plan to do to
address this issue? And if it's not addressed in the transition
plan, how can we assume that these domains are going to be
accounted for in the future?
Ambassador Gross. I'm afraid, Senator, I would give you a
very unsatisfactory answer, which is----
Senator Fischer. Then make it short.
Ambassador Gross.--I'm not sure. I'm afraid it has to be
ICANN and NTIA that will have to answer those questions.
Senator Fischer. Mr. DelBianco?
Mr. DelBianco. Thank you, Senator. On the question of dot-
mil and dot-gov, I agree completely. Those entities, the
Department of Defense and General Services Administration, need
to have a permanent assurance that those top level domains are
permanently under the control of the U.S. Government. That
requires an agreement, a piece of paper, a contract, and if it
doesn't exist today--and I'm told that it doesn't--then our DOD
and our GSA should draw it up and ICANN will sign it. Those are
the property of the U.S. Government, and they should never be
at risk.
Senator Fischer. Do we need to have this contract take
place, signed and sealed, before we move ahead on this?
Mr. DelBianco. I would suggest to you if the Department of
Defense feels they need more paper than they have, and if the
General Services Administration thinks they need more paper
than they have on gov, then I would completely support their
desire to force ICANN to sign that up, and I am confident ICANN
will do so.
Senator Fischer. Well, it sounds like you and I agree that
they need more paper, too. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Fischer.
Senator Ayotte?
STATEMENT OF HON. KELLY AYOTTE,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Ayotte. Thank you. Just to follow up on what
Senator Fischer asked, Mr. DelBianco, is there something that's
holding that back at the DOD end or any of the government
agency ends in terms of thinking about the transition time
coming up here relatively quickly?
Mr. DelBianco. Senator, I first brought this up over two
years ago in two hearings on the same day over on the House
side, and it's shown up in reports from this committee and
letters that many of you have written. I am told that the
General Services Administration and the Department of Defense
are satisfied with the status quo, and yet if they believe they
need more documentation, I know that ICANN would support it.
But that's within our government. So I would ask you to direct
those inquiries to the DOD and GSA, and we'll support whatever
it is they think they need.
Senator Ayotte. Well, this sounds to me like an important
congressional oversight function, given the security functions
of that site and what we need to do. We'll follow up on that,
and it seems to me that we don't want to have problems there
with their exclusive use in terms of the transition.
Mr. Sullivan, we really appreciate Dyn and how important
the business is to New Hampshire. I wanted to ask you as you
think about this transition, are there areas where you think
that the deadline isn't going to be met, or do you think that
everything is in line, that these deadlines can be met?
Mr. Sullivan. I think we can meet them. I fully admit that
this is rough. I mean, it is--this is a tight time. But at the
same time, I believe we can do it, because we're not changing
that much, and we've already worked on this for all this time.
So we know what we're doing. I believe we can complete it.
I'll just say one other thing just to follow up on the
previous item. It's important to remember that those top level
domains, mil and gov, are actually below the thing that is
being transferred. So it's the root zone that is moving, not
the domains underneath, and the DNS is designed, actually, to
break those things up. So you can actually do those two pieces
in different tracks, and it's not a problem.
Senator Ayotte. I think it seems very doable. It's just
that we need a plan, right, and we need to have it executed and
we need that clear understanding going into it. Does that make
sense?
Mr. Sullivan. Yes. But we have a plan. I mean, we're
executing it right now. We're having regular meetings. Those of
us who have to implement these things are busy doing it. In
fact, from my point of view, the biggest distraction is that
people keep saying, ``Oh, well, they can go longer.'' No, no.
You know, when you want to make a change on the Internet, you
don't sort of hold it on forever. If you do an upgrade to your
system, you don't let that take 2 years. You do it today,
because a halfway upgraded system is actually broken.
Senator Ayotte. My only point on the plan was just--we've
seen this slow moving train coming, and some of the basic
things in terms of the dot-gov and dot-mil--it seems like we
should have that already shored up and resolved and make sure
there's a clear contract. That's something I hope we'll just
make sure we get done, and we'll follow up with GSA and DOD on
that.
But I did want to ask you: Are the ongoing stress tests
sufficient to determine the reliability of the proposal's
policies before we have the all-out transition?
Mr. Sullivan. You can't do a partial test of this. The key
piece, of course, is taking out the U.S. Government oversight.
So if you don't take that out, you haven't tested anything, and
that's the reason that you can't do a sort of gradual test of
this thing.
Senator Ayotte. Or phased in.
Mr. Sullivan. You can't do it. If you do that, what you
will do instead is just introduce delays that don't tell you
what you need to know.
Senator Ayotte. If you were in our position, and if you
think about some of the issues that have been raised on the
other side of this issue, what do you believe that members of
Congress should be most focused on in reviewing this proposal
to make sure that we end up where we want to be? I think we all
share the same goals.
Mr. Sullivan. I think that a key thing to keep in mind is
that this is a voluntary system. People do this because they
chose it, and if you give them a choice and then take away the
meaning of that choice by saying, ``No, no, we're not going to
do it the way you said,'' then they might make a different
choice.
So the danger here is, in fact, that we could create a
situation in which people don't want IANA anymore, and they
want to do it some other way. That's possible. The Internet is
designed that way. And that is at least as big a threat to the
Internet as anything else that people could do. So from my
point of view, it's critical to recognize and to support that
the community has come together on this, we have consensus, and
we know how to do this. So let's get it finished.
Senator Ayotte. Thank you all for being here.
The Chairman. Thank you, Senator Ayotte.
Senator Gardner?
STATEMENT OF HON. CORY GARDNER,
U.S. SENATOR FROM COLORADO
Senator Gardner. Thank you, Mr. Chairman, and thank you to
the panel for your testimony today.
Mr. Beckerman, it's always good to see alumni of the Energy
and Commerce Committee make it over to the Senate, so it's good
to see an Energy and Commerce staff do good. So thank you for
being here today.
You say in your testimony the NTIA's oversight of IANA
functions has always hidden the reality that it was the
Internet community itself that was primarily responsible for
keeping the Internet working around the world. And on the other
hand, however, your statement also says that the failure to
implement a successful IANA transition will serve to undermine
the multistakeholder model, in turn, creating a risk to the
economic, social, and cultural engine that we all agree must be
protected.
So while we're having this debate, the question I have is:
How is it that NTIA's current role is minimal or not primarily
responsible, as your testimony stated, for day to day operation
of the Internet, yet also could be potentially destructive to
the existence of the Internet as we know it? So maybe clarify
the balance between those two. And do you believe the
transition is largely a response to international perception
and pressure, or is it something that we just need to do
naturally?
Mr. Beckerman. Thank you, Senator. It's good to be here.
I'd argue that the Internet has been one of the greatest
engines for economic growth and freedom around the world, and
that's what our members care about and our users care about and
what we want to maintain. I think probably all the Senators on
the Committee agree on that.
We think the best way to go forward with that and maintain
that is to move forward with this transition, and we've talked
a lot about some of the checks and balances that are in place.
But we feel that if we keep the status quo under NTIA or the
U.S. Government in some way, it will light the fire again under
the ITU or other nations to try to change that model, and as a
result, that would have a dire economic impact, we think, on
the Internet. So that's why we want to see this go forward.
Senator Gardner. Some nations' governments have instituted
countrywide Internet access blackouts, including nations like
Iraq, the Democratic Republic of the Congo, and perhaps most
known to everybody here, North Korea as well. In your
testimony, you talk about some countries that, quote, ``believe
that something as powerful as the Internet needs to be tamed by
government or in some cases fragmented so that networks stop at
national borders.'' You further note that if they have it their
way, the global and open Internet as we know it will cease to
exist.
So do you think that the most recent IANA transition will
send this--the proposal that we've been talking about today
sends a strong enough message to bad actors around the globe
like Russia that the United States will not tolerate
governments limiting, terminating, or otherwise restricting
public access to the Internet? If so, why do you think--to the
people who may believe that you haven't done such a good job,
how would you argue to them?
Mr. Beckerman. Thank you, Senator. That's a great question.
You know, part of the system that we have, as has been noted,
is that it only operates now under consensus, meaning that
everybody agrees that this is how it operates. We obviously
have limited powers, generally, on how countries want to
operate within their borders. But the best thing that we can do
is be the example for the world and let the multistakeholder
community, who has the greatest stake in the future of an open
Internet, take the reins here and show that out in the global
community.
Senator Gardner. Mr. DelBianco, in your testimony, you
argue that retaining NTIA's unique role increases the risk of
Internet fragmentation and government overreach. Do you think
the risk has developed or increased over time? And if you
believe it has increased over time, what specific events or
decisions do you think were most responsible for that, and how
has the role that NTIA has played changed over that time?
Mr. DelBianco. In the years, Senator, since we transitioned
ICANN toward privatization and independence, the U.S. Commerce
Department has taken a very light-touch role. So over time, it
was diminishing, this notion that the U.S. had a special and
unique power. And then it came more to a head, in the wake of
the Snowden revelations, that the U.S. control might have some
implications there.
Now, all of us in this room know that the domain name
system has nothing at all to do with government surveillance.
But it doesn't matter. Politics are what they are. That led to
the pressure on moving ahead with the planned privatization,
the last remaining legacy arrangement that we had, which was
the oversight of the IANA contract. So now the pressure shows
up on that.
We are in a position now to replace the U.S. light-touch
oversight with heavy oversight by the community. It's an
excellent bargain for the community of Internet stakeholders.
And yet if we were to delay this transition--any kind of a
significant delay, as Ambassador Gross has said many times--
that refocuses the world that, hey, there really must be
something special about the role that NTIA holds with IANA. In
fact, it must be so special that it ought to be run by the
United Nations. We end up creating that entire spectacle again
and increasing the pressure that we have been in the middle of
diminishing.
Senator Gardner. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Gardner.
Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Mr. Chairman. We've heard today
that a successful transition means maintaining an Internet free
from government control, and that an Internet tamed by
government is bad for Internet users and for the overall global
economy. This government-involved model that we are trying to
avoid sounds a bit like the FCC's Net Neutrality Rules.
Mr. Schafer, are the FCC's Net Neutrality Rules consistent
with the light-touch oversight regime that everyone seems to
agree is essential to maintaining freedom on the Internet?
Mr. Schafer. Thank you, Senator. I'm afraid I'm going to
have to beg off on that question, because I don't do Net
Neutrality for the Heritage Foundation. So I don't feel like
I'm the person to answer that question for us.
Senator Daines. Do we have somebody who would like to swing
the bat at that ball?
Mr. DelBianco. Senator, I'm also not an expert on FCC. But
when you think about neutrality being the control of traffic,
we've really got to acknowledge that, as Mr. Beckerman said,
governments control the conduct and content of what happens
within their borders, whether it's over the air or on the
Internet. And when they do that, we have to lead by example and
claim that it's wrong, that it disadvantages their citizens to
get lousy information, that their businesses can't reach
customers out here, and we can't sell things to them.
But I don't think that the parallel would work here,
because ICANN can do nothing to influence the content
censorship that happens within a country's borders. ICANN has
nothing to do with that, on purpose.
Senator Daines. Let me pivot over on this issue of small
business representation. The business community and
constituency that help advise the ICANN Board is made up of
companies like Amazon, AT&T, Facebook, Google, Microsoft--great
companies.
But, Mr. Gross, what about small businesses? The
constituency claims to do outreach to small enterprises. But
are the interests of small businesses truly represented in this
model?
Ambassador Gross. I think it actually clearly is, and I can
give you some examples. Not only are all of us involved in this
process very sensitive to that, because we all recognize that
the growth and innovation of the Internet by and large is
driven by small entrepreneurial organizations and that the
economic impact on an economy is driven by SMEs, but Mr.
Sullivan is a good example of what we're talking about.
Many of the technical people that are very, very deeply
involved in this process work for small companies, small
technology companies, and are acutely aware of the impact that
this has on them.
Senator Daines. Well, I appreciate that, because I was part
of a small technology company for a number of years that became
a large technology company.
We've also heard about the possibility of Internet
fragmentation, the governments breaking off, perhaps creating
their own systems, if this transition were not to go through.
When I was at Right Now Technologies, we had customers in
Canada, Australia, Germany, Japan. Our product was available in
33 different languages. We had 17 offices around the world. So
I saw that firsthand.
Mr. Beckerman, could you talk about the implications of a
fragmented Internet on your member companies that have global
businesses?
Mr. Beckerman. Thank you, Senator, and your point is a good
one. A fragmentation is terrible, probably even worse for the
small and medium sized business, but for larger companies as
well. The Internet has grown and has created this great
innovation and growth of the economy because it is not
fragmented, because data can flow throughout borders, and it is
one system.
So anything that blocks that will be bad for, I think, the
global economy, generally, particularly as the Internet is
taking a larger role in creating economic growth. But it would
be devastating, I believe, for the smaller companies.
Senator Daines. The issue of the dot-mil and dot-gov
domains was brought up earlier. We've got exclusive use--and I
say, we, being the United States' exclusive use of dot-mil and
dot-gov. It's unclear whether the U.S. will keep exclusive use
after the transition. Despite years of work on the transition
proposal, today, we still don't have any clear information on
how this matter would be addressed.
Mr. Schafer, could you talk about the security risks
involved in allowing other governments or the private sector to
use dot-mil or dot-gov domains?
Mr. Schafer. Well, absolutely. We've preserved our
exclusive use of those because we don't want third actors to
come in there where our military has sensitive information and
our government has sensitive information. We want to be able to
preserve our unique and sole use of those domains going forward
and we want to make sure that doesn't happen.
The only way to do that is to enter into a sole contract
with ICANN assuring that the U.S. will have exclusive use of
that in perpetuity. We have informal arrangements right now. I
think we should formalize them, and that's the only way to
resolve that.
I have some other thoughts on other questions you've asked,
but I'll reserve----
Senator Daines. Thank you. That's a good answer to the
question. I think it's helpful.
Last, for Mr. Sullivan, we've heard today about how the
NTIA's current oversight role is bureaucratic and moves at the
speed of government, not at the speed of the Internet. But the
transition proposal before us is 210 pages long. ICANN's bylaws
are 216 pages long, and the ICANN Board is advised by half a
dozen advisory committees, each with sub-constituencies. With
all of these accountability layers in place, are we really
achieving a less bureaucratic process?
Mr. Sullivan. Yes, we are. Thank you. The reason that there
is an issue is because there is a wheel in the system right now
that does no work. The approval of NTIA happens after all of
the other checks have already taken place. So I have been
directly involved, not that long ago, in a change to the root
zone that was a response to a denial of service attack on the
Internet. This happened to be an attack on the top level domain
of the country, Turkey.
That attack--we were able to mitigate it by adding some
additional name servers to the network. But the problem was we
had to go through the approval of NTIA. Now, some people
involved in that thought that NTIA made it slow, and other
people think that it didn't make it slow. And from my point of
view, it doesn't matter, because all of the technical work had
already been done. There was no reason to do this.
That's the kind of problem that I see with the continued
involvement of the NTIA. It's just not doing any work. You
should get rid of features that you don't need in your code.
They're just bugs waiting to happen.
Senator Daines. Thank you, and thanks for that thoughtful
reply today, too, as well. I appreciate it.
The Chairman. Thank you, Senator Daines.
Senator McCaskill?
STATEMENT OF HON. CLAIRE McCASKILL,
U.S. SENATOR FROM MISSOURI
Senator McCaskill. Mr. Schafer, this is to you or Mr.
Manning. In 2012, Marco Rubio and I sponsored a resolution that
said, and I quote, ``The consistent unequivocal policy of the
United States is to promote a global Internet free from
government control and preserve and advance the successful
multistakeholder model that governs the Internet today.'' That
passed unanimously in both the House and the Senate, which is,
frankly, astounding that anything would pass unanimously in
both the House and the Senate.
So what has changed in the last three and a half years to
justify forcing the Commerce Department to continue in the
current role?
Mr. Manning. First of all, I appreciate the question.
Sitting here with the various esteemed experts who have been
talking reminds me a little bit of when I went to Belfast and I
spent some time in a shipyard there and watched the shipyard
where the Titanic was launched, and all the experts said it
would work, and it did until it got halfway through the North
Atlantic. And we all know what happened.
But in terms of your direct question, in 2012, the Obama
Administration also put an RFP out on whether ICANN should
hold, should continue to be the contractor, the vendor, to
oversee these functions. So in that exact timeframe that you're
talking about, the Obama Administration was so frustrated with
the actions of ICANN and the lack of accountability that they
actually went to the step of putting out an RFP to try to get
their attention so they would be accountable. That's one of the
things that's happened.
It's proven that when the Federal Government has the
capacity to say ``Wait a second. You're not doing what you're
supposed to be doing'' to ICANN, ICANN reacts. When ICANN is
acting as an independent operator, then they will have no
accountability to you or to Mr. Rubio or to anyone else who
sits in this committee room, only to the Executive Branch.
Senator McCaskill. I get your point. But let me ask the
panelists who are working on this transition: Wouldn't a two-
year extension just kind of make China and Russia point to our
delay as a rationale to exert more control and build support
for moving the governance to the U.N.? I mean, aren't we going
to create exactly the atmosphere by continuing to delay that is
going to end up causing much more damage than the frustration
we have with the accountability of an organization that's not
directly under government control?
Mr. DelBianco. Senator, I would agree completely. That is
the risk that we've identified here today, because we have
spent a generation explaining that the U.S. has a light-touch
oversight with an intention to transition and privatize. And
now at the final hour after the community unanimously supports
the proposal, we're going to say, ``Never mind.'' Others want
another bite at the apple. Somebody wants to revise it. That
will send a signal that, really, I guess the U.S. Government's
unique role is quite important, that the U.S. has no intention
of giving it up, and that's a signal that the U.N. should
resume its efforts to step into the shoes that we stand in
today.
Senator McCaskill. So let me ask you this. Let's assume
that we move forward with the transition. I'm a little worried
about the accountability of ICANN. I agree with the witnesses
that have talked about that. Is there a mechanism in the plan
for third-party audits? Who's going to be a third-party arbiter
over their finances and other--you know, who's going to make
sure that there's transparency? Who besides the Board?
Mr. Schafer. There is not one automatically in place. The
community can request one. It has been given the power to
request one.
Senator McCaskill. Shouldn't there be a requirement that
there be a third-party audit?
Mr. DelBianco. There is a financial audit every year by a
third party.
Mr. Schafer. I'm talking about a third-party audit of ICANN
that can be decided by the Empowered Community, and it has been
empowered to do that. But I agree with you that the
transparency is important.
In terms of the multistakeholder model, you asked earlier,
you know, do we want to just toss it aside. No, I don't think
so. I've said it before, and I said it in my opening statement,
and I said it in my written testimony that I'm in favor of the
transition.
But I think we need to proceed cautiously because the
Internet is important. And we have proceeded--Andrew said it's
the slowest car crash in history, but it has actually been a
very, very difficult and jam-packed two years to put this
proposal together. We have worked extreme hours and in
extremely tight timelines, and we've done extreme edits to the
bylaws. They are twice the size that they used to be.
And proceeding now, I think we should make sure that we
have appropriate time to assess how the process is going to
work in real time, not these stress tests, which, while I think
are valuable, are not real world exercises. See how it works in
the real world, and then we can move on to the transition. I
think that we should do that. But I think we need to verify and
vet to make sure that we're not making irreversible decisions
before moving forward.
In terms of the government control of the Internet, I agree
with the resolution that passed unanimously. I think that we
should move to a multistakeholder model, but I think we also
need to make sure that we understand exactly what we're
proposing. And the equities and principles that are established
by NTIA are not necessarily those that are established by
Congress.
The letter by Senator Thune and Senator Rubio in 2014
contains the phrase that they thought that the IANA transition
should not provide an opportunity for governments to increase
their influence. So exactly where is that line about where
governments should be in ICANN and what should be acceptable in
this transition to NTIA but also to Congress, and those may not
be the same thing. Thank you.
Senator McCaskill. I'm out time. If the Chairman allows you
to go, Mr. DelBianco--I know you wanted to say something.
The Chairman. Yes, please go ahead.
Mr. DelBianco. Thank you. You asked about annual audits of
accountability. So here's the good news. In June--I'm sorry--in
February of last year, this committee really quizzed Secretary
Strickling and ICANN's CEO over whether ICANN would live by the
Affirmation of Commitments once the IANA contract was over. We
took good note of that, and stress test 14 specifically looked
at what happens if ICANN walks away from the Affirmation of
Commitments, because in that affirmation is the only place
where we can require ICANN to do annual reports of transparency
and accountability and every 5 years, a community-led review of
accountability and transparency, where we have the ability to
inspect documents that are inside of ICANN.
So the good news is that we have baked all of those
commitments on accountability into the bylaws. ICANN cannot
walk away from them anymore, and that's in specific response to
a concern that this committee raised last February.
Senator McCaskill. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator McCaskill.
Senator Johnson?
STATEMENT OF HON. RON JOHNSON,
U.S. SENATOR FROM WISCONSIN
Senator Johnson. Thank you, Mr. Chairman, first of all, for
holding this hearing. This is really an interesting discussion.
I appreciate really all the testimony, and this all sounds so
reasonable. We have all these acronyms for all these different
organizations. You know, I come from a manufacturing
background, so I've solved an awful lot of problems. There are
two well-known sayings that, certainly, are my guiding
principles. The first one is ``If it ain't broke, don't fix
it,'' and, secondly, ``All change is not progress, all movement
is not forward.''
So I want to first go to Mr. Schafer. You said you're not
opposed to this transition. Define what's broken. What's
broken? Why do we need to transition?
Mr. Schafer. As I mentioned in my opening remarks, the main
impetus for this transition is political. The system is not
broken. The process is working smoothly. The actual IANA
function process is working well. It has facilitated the growth
of the Internet over the past three decades, and since ICANN
was established in 1998, that process has worked smoothly and
well.
So it's a political dynamic whether it's going to move
forward or not. I disagree strongly with Mr. DelBianco and Mr.
Gross that this will send a signal that we don't have faith in
the multistakeholder community.
I think that we are just showing prudent caution to make
sure that what the multistakeholder community is approving
works well and works the way that they think it's going to work
before we let go and loosen the U.S. ability to actually back
up that community and demand that the Board implement changes.
The Board has resisted things over and over and over again.
And in terms of the other countries, our decision over this
transition is not going to affect one iota China, Russia, or
other countries' decisions on their own domestic policies or
whether they're going to pursue their own censorship or
constraints on the Internet in the United Nations, or to try
and pressure ICANN itself through the GAC or bilaterally or
other means, whatever they have available. This agenda is
important to them. They're going to pursue it regardless of our
decision.
Senator Johnson. Mr. DelBianco, in answer to one of the
questions, you basically agreed that this was about politics.
Pressure has been building because of Edward Snowden. Is this
really just about politics and pressure? Where has America not
been a good steward of the Internet? I mean, look at the
phenomenal progress that's been made under our stewardship. Why
do we want to give that up? Why would the world community want
us to give that up?
Mr. DelBianco. Excellent question, Senator. I would suggest
that part of what happened with Snowden affected only the
timing. That created the impetus in 2014 to take a hard look.
But you said if it ain't broke, don't fix it. But if there's
something broken in the road ahead, you would definitely pay
attention.
And think about it. The IANA contract would end at the end
of 2018. The U.S. Government at that point would have to
confront the specter of telling the rest of the world, ``We're
going to renew the contract. We're going to continue to hold
the reins.'' So sooner or later, Senator, we would have
absolutely faced the specter of telling all the other
governments in the U.N. we're never going to give up control.
Senator Johnson. I like preventative measures, no doubt
about it. But, again, let me go back to--can you point to
something that's actually broken right now, other than the
political perception that something is amiss?
Mr. DelBianco. Senator, I will. If we allowed this contract
to just go on until it expires in 2018, the U.S. would face a
broken system, because the U.S. would have to stand in front of
the world and say, ``We really never intended to transition
ICANN to privatization.'' What we have done here is accelerated
that timeframe, because the contract itself had a short
expiration in 2015. We extended it.
Senator Johnson. And so we're assuming something in the
future might be broken, but you can't point to anything in the
past that's broken.
Mr. Manning, do you want to try to answer this?
Mr. Manning. Well, you know, anybody who has ever put in an
operating system into their computer knows you really don't
want to be a first mover. You want to allow the beta testers to
figure it out. And it seems to me that what we're doing with
this accelerated time-frame is we're really putting ourselves
in a position of beta testing this whole multistakeholder
system that's been developed. I recognize that with the
backstop of having government oversight over ICANN--it isn't a
full and complete test.
However, I think it's foolish to move forward with a system
that's being crammed together in short order by a lot of really
smart people with best intentions and not--with the real
stewardship responsibilities we have, not make certain that at
least the blocking and tackling is done right before we turn
full control over of this system to----
Senator Johnson. By the way, we have extended this contract
four times, correct? Did a disaster occur? And, by the way, I
have seen multiple times something far less complex, things
like material resource planning systems in companies, just be
an unmitigated disaster. So that's, again, why I kind of adhere
to ``All change is not progress, all movement is not forward.''
Mr. Sullivan, you wanted to chime in on this one?
Mr. Sullivan. I have been involved in cases where there
was, in fact, a failure, because this is an additional step.
There's this additional approval step, and it's unnecessary,
and what it does is slow down responses, emergency responses on
the Internet to real operational problems. I do DNS for a
living, and we see those things slow stuff down. So that's an
example of something that is broken today because of the need
of the U.S. Government to be involved.
The additional thing is that these are voluntary systems.
They are systems that people choose to use. The community of
people on the Internet could go away and do something else with
this. There are systems, for instance, that have been designed
to avoid the IANA registries, and we could encourage that sort
of thing even further if we delay on this. So there are
immediate threats and there are actual practical cases.
Senator Johnson. OK. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Johnson.
Senator Rubio?
STATEMENT OF HON. MARCO RUBIO,
U.S. SENATOR FROM FLORIDA
Senator Rubio. Thank you. I think we can all begin by an
agreement that up to this point, this process has worked well
for the world. The U.S. innovated the Internet, and our
management of it has led to its enormous explosion. I want to
say that one of the reasons why the world should be grateful
that America innovated it is because we have a concept in this
country of free speech that doesn't exist in many other
democracies, vibrant democracies in this world where the
concept of free speech does not exist.
So that has governed the way in which the Internet has
developed here and around the world, and for better or for
worse, there's a lot of free speech on the Internet, as we're
all aware. So up to this point, it has worked well.
I understand the argument. I really do. The world has grown
up, and now they're saying, ``OK, we've now grown up. We've now
reached capacity, and so we want to have a greater stake
through non-governmental entities in the future of the
Internet. America should no longer singularly control it. We
thank you for innovating it and bringing it forth. We thank you
for your years of management, but we want a greater stake in
what is now a global common.''
I don't dispute that or dismiss it offhand. What I do
dismiss, however, is this notion that if we somehow don't do it
on this accelerated timeframe, then the world is going to rebel
and say, ``Oh, we knew you were lying to us the whole time. You
never intend to give this up,'' and that somehow this is going
to give an excuse, for example, to China or Russia to argue to
the world, ``That's why we need our own Internet regulatory
framework apart from the United States because this stuff
doesn't work anymore.''
And the reason why is because I think irrespective of what
we do, China is going to move forward. I have here, for
example, from NTIA, dated May 16, 2016, and it writes, ``In
March 2016, China's minister of industry and information
technology issued draft measures that would require all
Internet domain names in China to be registered through
government licensed service providers that have established a
domestic presence in the country and would impose additional
stringent regulations on the provision of domain services.''
It goes on to say, ``These regulations would contravene
policies that have been established already at the global level
by all Internet stakeholders, including the Chinese.'' So my
view and my prediction is that I don't care how fast this moves
or what we do, China is going to try to take over, at least as
much as they can, the Internet, because it's a threat to their
government control of their society.
There's an article somewhere today--I only read the
headline. I didn't get a chance to read the body of the
article. But it said that one of the unfortunate things that's
happened in China is it proves that Internet control works.
It's one of the first things these regimes try to do, and, of
course, China will try to use its growing economy as a leverage
point on the world: If you want to sell to the Chinese people,
then you're going to have to register domains under our system
that we've created. So I think that's going to happen anyway.
I think the point and what I intend to communicate here in
a letter here that I hope my colleagues will join me on is that
before any plan can be implemented, we ensure that changes in
the transition proposal are applied, that they operate as
envisioned, and that they don't contain unforeseen problems
that could undermine the multistakeholder model or that
threaten the openness, security, stability, the resiliency of
the Internet.
So I plan to communicate this formally to the
administration in a letter later today, and I welcome any of my
colleagues on this committee to join me in making sure that
we're not the ones who get this wrong, that we're not the ones
on the wrong side of history, who, because of international
pressure, because of these arbitrary deadlines, we proceed
hastily to give up one of the greatest promoters of democracy
and free commerce in the history of the world, the free and
open Internet.
I honestly don't believe that proceeding cautiously on this
is to our detriment, and I think that's fully understandable,
given the scope of what we're talking about here. And I would
say also that while we still control the process and the
timeline, once we move past a certain point, there is no
leverage to pull back. If this thing goes off the rails, if, in
fact, it's used in a nefarious way, what leverage do we have to
pull back on it?
Mr. Schafer, I'll ask you: What would be the consequences
if we didn't do a soft transition? What would be the
consequences of not doing a soft transition by allowing, for
example, the NTIA contract to expire in three months?
Mr. Schafer. We would be pursuing what you just outlined,
which is a risky course of action. We think we know what this
proposal is going to do. We think we know how the Empowered
Community is going to work. We think we know how ICANN is going
to respond to governments and to the Empowered Community. But
we do not know that.
If we go forward with this transition--which the Board has
promised to implement all of the accountability measures, the
vast majority of the recommendations in the bylaw changes
already--regardless of whether the transition proceeds on time
or not, if we do that, it allows us to vet and actually explore
this proposal and make sure that it's operating the way we
think it's going to. I think that is a prudent course of
action, to proceed cautiously and to go forward on a sort of
test drive of this new process and make sure that it is
operating effectively and as we think it's going to.
Senator Rubio. On the open questions, Mr. DelBianco, I
would ask--I think you spoke about this earlier. The revised
bylaws for the ICANN Board that they're currently reviewing
seem to send a mixed message in terms of future jurisdiction.
Particularly, the revised bylaws do not include a fundamental
bylaw that would solidify ICANN's locus as in L.A. County or
the U.S., generally, which the U.S. Chamber of Commerce and
others have sought since the transition's announcement in 2014.
Furthermore, the 2009 Affirmation of Commitments includes a
provision that ICANN remain headquartered in the U.S., but that
commitment is not enshrined in the revised bylaws. On the other
hand, the revised bylaws are rooted in California non-profit
law and include a provision that the principal office of ICANN
remain in L.A. County.
So what assurances do we have that can be provided that
ICANN will remain headquartered, not just maintain a principal
office, in the U.S., considering these deficiencies as it
currently stands?
Mr. DelBianco. Thank you, Senator. I'm not a lawyer. I'm a
tech entrepreneur and a businessman. But lawyers tell me that
the principal office for the transaction of business is the
term they use for headquarters, and that is in the bylaws. It's
in Article 18, that the principal office for the transaction of
business of ICANN shall--not is or may be--but shall be in Los
Angeles. That's in the bylaws. If ICANN attempted to change
that bylaw, the community itself could block that change.
But that's not enough. I said belts and suspenders in my
opening remarks. The suspenders part is in the Articles of
Incorporation, where Section 3 says ICANN is organized under
California non-profit public benefit corporation law. And for
ICANN to try to change the Articles of Incorporation would
require a 75 percent support from the Empowered Community.
So ICANN will have a U.S. presence, a legal presence and a
headquarters presence, unless the vast majority of the whole
Internet community decides at some point that they don't want
it to have that. Now, none of that would interfere with your
ability to protect American citizens and businesses from
whatever ICANN would ever do, because jurisdiction flows any
time that an entity like ICANN is affecting the interests of
Americans. It really doesn't matter at that point on the U.S.
jurisdiction.
Senator, you talk about this notion of an accelerated
timeline, so I took the liberty of displaying a board, which I
created about a year and a half ago for hearings in the House,
to show the timeline on this transition. So it's 2 years long,
and it has multiple tracks, the accountability part, Andrew
Sullivan's technology part, and a tremendous role for the U.S.
Congress and administration as well as civil society. So we've
had plenty of opportunities to work our way in to this multi-
hundred-page document, but you can't test the document.
Almost everything we're doing in our new bylaws affects how
the community reacts when things go wrong, when there's a
disagreement with ICANN's Board, you see, because every day,
ICANN will get up and put their pants on and do business the
same way they always have. We can't test extreme emergency
measures such as we've built over any period of a few months or
even a few years.
So the notion of a delay--I'll close quickly. I'm using
your time and I'm very sorry about that. But the notion of a
delay simply sends the signal that the U.S. believes that the
role we hold is so valuable we're not giving it up, and we've
reiterated to China, Russia, and the United Nations that they
want to step into those shoes, and that's the biggest danger of
a delay.
Senator Rubio. Yes, and I would just say, look, I can't
speak for anybody else. Maybe others never want to give it up,
OK? I'm telling you from my perspective and my engagement on
this issue, it's not about not giving it up at some point. It
is about whether we do it the right way, because it's an
irreversible decision in many, many ways, and it comes in light
of increased authoritarian measures around the world in places
like Russia, in places like China, over the Internet.
I just read to you this statement put out by NTIA that
shows that we are having this debate in the context of an
increasingly authoritarian environment when it comes to
oversight of the Internet, where China has done a successful
job of building a great firewall, where today, you know, people
in China do not have, for example, access to images from
Tiananmen Square. It is filtered out.
So there are real concerns about the environment that we
operate in when some of the largest global players are
authoritarian regimes who have shown the propensity and the
willingness to exercise control over the Internet and also, by
the way, in the context of what's happening geopolitically in
the South China Sea, as an example, where China is a signatory
to the Law of the Sea Treaty, and yet they are taking over
illegitimate territorial claims that they're exercising,
building artificial islands, claiming territory that doesn't
belong to them, and basically ignoring the mechanisms by which
all of that is supposed to be regulated. If they do that for
islands, why would they not do it for the Internet, one of the
most powerful tools in human history?
So it's not that I don't want it to happen. I just think it
has to happen in the right way in the right timing, or we can't
get it back. We can't reverse those mistakes.
Mr. DelBianco. Senator, let me add that you're exactly
right. The actions that these regimes take to block their
citizens' access is fragmenting the Internet, and it is a bad
thing. It is exhibit number one for why we don't want to allow
them to elevate that to a United Nations level control over the
Internet itself. China is going to censor content of its own
citizens and businesses, and there's not a thing that ICANN can
do about that at all. Nothing ICANN can do will ever affect
that.
Instead, we need to make sure that ICANN is insulated and
doesn't present a target for China, Russia, and other nations
to elevate that censorship through the U.N. into where they now
can impose that at the top level of the Internet. See, it's one
thing for them to block the content of a YouTube video in
Turkey if it offends the sensibilities of a president. But what
if they could use that to block the entire YouTube.com domain
from the entire Web.
Do you see what I'm saying? We can't allow that censorship
to creep to the core. The best we can do is recognize the
nations will censor at the edge of the Internet.
The Chairman. Thank you, Senator Rubio.
Senator Sullivan and then Senator Klobuchar.
STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM ALASKA
Senator Sullivan. Thank you, Mr. Chairman.
Gentlemen, thank you for your testimony. I think, you see
the bipartisan concern that we have here on this issue. There's
a backdrop to some of the concern, and that's watching an
administration for 8 years who has undertaken negotiations with
some of the adversaries that we're talking about--Iran, the
Iran nuclear deal, even what's going on in Syria with Russia--
where despite being told that these negotiations are in the
best interest of the United States, a lot of us think that what
we've gotten has not been in the best interest of the United
States and other realms.
But that is a backdrop here, because there's a sense of
``here we go again''--an administration that sometimes thinks
our actions in the international realm have harmed the world's
interest or doing something we might regret. So let me ask a
question. What was the reason, again, for the idea for NTIA's
transfer? And how does this advance America's interests? Two
very simple questions.
I'll start with you, Ambassador Gross, just on that
question. How does this advance the interests of the United
States?
Ambassador Gross. Thank you very much, Senator. As you well
know, because you helped lead the U.S. interests just a few
years ago during the World Summit, the issue of ensuring the
independence of ICANN from governmental control is of paramount
importance, and we have been, for the entire time, successful
in keeping that from happening.
Senator Sullivan. So let me just--Mr. DelBianco, you
insinuated that if we allow the transfer to go forward, the
actions at the United Nations, the actions at the ITU, will
somehow lessen by Russia, by China, by--but Mr. Schafer, you
said that this is only going to whet their appetite. Isn't the
action ultimately going to be at the ITU and the U.N. with
regard to what China and Russia are doing to try and continue
control over the Internet?
Does anyone on this panel believe that they're not going to
continue regardless of the transfer to try to get more control
over the content and governance of the Internet? Does anyone
believe that that's not going to continue to happen?
Mr. DelBianco. It will continue, Senator, but we will take
away their target. The target of nations that want to assert
control is to step into the shoes that the U.S. has uniquely
filled since we created ICANN. Because we are the unique, sole
nation controlling the IANA contract, that becomes the target
that they want to take.
Senator Sullivan. But you're not saying that we allow this
transition to go forward and they're going to be good to go on
Internet control and control over the content.
Mr. DelBianco. Within their own borders, we know that
nothing about this transition is going to affect what China
does to suppress what its citizens see and what its businesses
can do.
Senator Sullivan. But I'm also talking internationally.
Isn't it a concern to you--that all of you share--that they're
going to continue--and when I say, they're, I'm talking about
authoritarian governments who want more control over the
Internet. Aren't they going to continue with their campaign at
the United Nations, at the ITU?
Ambassador Gross, you've done a great job of thwarting that
in your career at the State Department. But isn't that going to
continue? Isn't that where the action is, to be honest, if
we're worried about Internet control in terms of authoritarian
regimes?
Ambassador Gross. Indeed. In fact, I would say that that is
going to be it, and the question here is what impact the
decisions here on the IANA transition will have there. In
answer partly to your question about the timing, part of the
timing has been that in 2012, there was a thing called the
WCIT, which was a treaty conference at the ITU that many of the
countries that are authoritarian and otherwise wanted to
explicitly extend the jurisdiction of the ITU to include
Internet-related issues. There was a split, and we were--we
never signed that treaty, thank God. But we were also on the
minority there.
Senator Sullivan. And is that one--does every nation who is
a member of the ITU get an equal vote?
Ambassador Gross. Correct.
Senator Sullivan. So we are----
Ambassador Gross. We are one of 183, I think is that
number.
Senator Sullivan. Well, that's a challenge.
Ambassador Gross. Indeed. So here, the key is do we want to
give ammunition to those who seek to extend the ITU's role in
this space by saying that governments ought to decide after all
the work that's been done by the multistakeholder community
with regard to the IANA transition? Do we want to give them a
talking point for which we will have a hard time rebutting----
Senator Sullivan. Well, let me just interrupt you.
Mr. Schafer, you seem to think the opposite. You thought
that this would whet the appetite for more action in these
international fora like the U.N. and ITU. And if that's the
case, or if all of you believe that these authoritarian regimes
are going to continue their activities in those international
fora for more control over the Internet, what should we be
doing in the Congress once this issue is either behind us or
delayed? And I think it's a healthy debate to have, but what
should we be doing as a Congress to give our negotiators, our
administration, our allies more authority to thwart the
attempts at Internet control in these international fora,
which, to me, seems like where the real action is.
Mr. Schafer?
Mr. Schafer. Senator, I agree. I think that what's going on
with the ICANN transition, whether the U.S. allows the
transition to proceed or whether it doesn't proceed, is not
going to change the motives. It's not going to change the
efforts of countries that want to go to the ITU and use it to
sort of intrude over Internet governance internationally.
They're going to try to do that anyway, regardless of what
happens with this transition. Therefore, I kind of regard it as
a separate matter. I'm more interested in making sure that this
ICANN transition process, if we're going to proceed down this
path, is actually well done and is exactly what we're
envisioning.
And then we need to battle on this other front, because
whatever they're trying to do or will intend to do in the ITU
is not going to be affected by the U.S. continuation of its
oversight role or the transition being implemented. That is a
battle that is going to have to be fought there. The decision
to proceed on the transition and announce it was a short-term
political effort by this administration to blunt that effort.
It's not a solution to that problem. We're going to have to
continue to do that.
And, therefore, I think that those who think that we're
going to announce the ICANN transition, and this is somehow
going to magically appease the governments that want to have a
greater say over the Internet governance--it's just
wrongheaded. It's not going to resolve that problem. I think
you put your finger on a very big issue, and we need to see
them separately, but we should not delude ourselves and fool
ourselves into thinking that this transition is somehow going
to resolve that other problem.
Senator Sullivan. Well, Mr. Chairman, just a final comment.
If any of the panelists have suggestions for the record that
they would like to submit to give us more ammo--and I say, us,
our negotiators at the U.N. and the ITU--to prevent that kind
of takeover and how the Senate can help in that regard--because
that is going to be a continuing battle. We would welcome those
suggestions as part of this hearing. Thank you.
The Chairman. Thank you, Senator Sullivan.
Senator Blumenthal has returned. He's up next, and then
Senator Klobuchar.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thanks, Mr. Chairman, and thank you all
for being here on a very important, complex, and sometimes
confusing topic.
Last year, as you know, the FCC established the Open
Internet Order to protect and promote the open Internet in the
United States. The global Internet should similarly be free and
open, and to that end, the United States has a responsibility
to lead by example. That's the most effective leadership there
is. That is to remove any perception, real or imaginary, that
the U.S. Government is somehow controlling the Internet.
Now that the multistakeholder community has approved an
IANA transition plan for approval, I think it's important that
the U.S. Government avoid any actions that may send the wrong
message to the international community regarding its support of
an open Internet. There may be certain risks associated with
any delay of the IANA transition or calling for a vote in
Congress on that transition.
So my question to you, Mr. Sullivan, is: what role does the
Internet have in promoting free speech and human rights? And
how do we best secure and open an free Internet, not only at
home, but around the world?
Mr. Sullivan. Thank you, Senator. First, I should say I am
not a politician or a human rights lawyer or anything like
that. I make bits flow on the wires. From that point of view,
my view is that the Internet encourages the expansion of those
rights by its nature because it is voluntary, because it is
designed to work only if you and I want to exchange things, we
exchange them between us.
So the whole design of the system encourages that kind of
operation because it's not possible to go and talk to, you
know, the person who is in charge of this. Instead, you have to
encourage people to interact of themselves. So from my point of
view, that is actually what encourages the rights development,
both domestically and internationally.
Senator Blumenthal. If Congress were to call for a vote on
the IANA transition, what message would it send to foreign
governments, do you think?
Mr. Sullivan. Well, I think it would send to foreign
governments the suggestion that the United States doesn't
really believe that the community is ready to do this. But I
don't think it's just foreign governments that I'm worried
about. I'm worried about this message being sent to the
operators of all of the networks all over the world.
The United States said it was going to get out of this, and
it told people to come up with a plan, and we did come up with
a plan. We've worked on it for all this time. We've worked on
it for many years. We've been ready to do this for a long time,
and it's working.
So if what happens now is somebody comes along and says,
``Well, we didn't really mean it,'' then everybody is going to
look at that and say, ``Well, why should I participate in this
voluntary association when the people who are involved don't
hold up their end of the bargain?'' I'm really worried about
that. I think that would be destabilizing. It would be bad for
the Internet. It would be bad for all the businesses that
depend on it. But it's a real risk because that's the way the
Internet is designed.
Senator Blumenthal. And bad for human rights?
Mr. Sullivan. For sure. I mean, if you undermine the
Internet, and you undermine the functioning of it, and you
undermine the way that it works, and you undermine the trust
between people, then the Internet will function less well. It
will take time for people to come up with these alternatives,
and they'll be competing alternatives, and we will see various
kinds of fragmentation.
I think it'll come back together because the interests are
always in--you know, on the end of the network for me to
exchange with other people. That's what I want to do. So it's
natural that it will gradually converge. But we have a system
that's working now. We don't need to undertake all of that
work.
Senator Blumenthal. Does anyone on the panel disagree with
that point?
[No verbal response.]
Senator Blumenthal. Let me ask you, Mr. Beckerman, if I
may, if we fail to move forward with transitioning stewardship
and transitioning over key Internet domain functions within a
reasonable timeframe, what's the risk that we lose our chance
to preserve the multistakeholder model, of Internet governance,
that the ITU and other intergovernmental organizations may
wrest control, take control?
Mr. Beckerman. Thank you, Senator, and I appreciate the
comments you make about the role that the United States has to
play in a leadership role with the Internet and the role the
Internet has played for democracy and free speech and human
rights around the world. It's incredibly important, and that's
why there is a lot at stake in this transition.
I think if the United States sends the wrong signal going
through this process, there will be ramifications for
multistakeholder processes well beyond this. And, certainly, as
we've talked about this morning, it does light a fire under the
ITU and others to take the reins, and the only thing that's
really holding this particular system together at the moment is
the consensus. And if there's not faith that the United States
is negotiating in good faith and that we're putting our trust
in the multistakeholder community in this process, I think the
results could be unfortunate.
Senator Blumenthal. Thank you.
Thanks, Mr. Chairman.
The Chairman. Thank you, Senator Blumenthal.
Senator Klobuchar?
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you very much, Mr. Chairman.
Senator Schatz was going to put these on the record, and he
asked me to do it. First is an open letter supporting the
transition from 17 Internet companies and trade associations,
including the Internet Association and U.S. Chamber of
Commerce. And the second is a letter from a group of seven
civil society and public interest groups supporting the
transition.
The Chairman. Without objection.
Senator Klobuchar. Thank you.
[The information referred to follows:]
______
May 23, 2016
Civil Society Statement of Support for IANA Transition
Introduction
We the undersigned U.S. and international civil society and public
interest groups support and encourage the timely transition of the
Internet Assigned Numbers Authority (IANA) functions to the
multistakeholder community, as outlined in the Internet community's
proposal submitted to National Telecommunications and Information
Administration (NTIA) on March 10, 2016.
Civil society has been involved in and following the IANA
transition since NTIA's announcement in March 2014 in which the agency
communicated the intention to ``transition key Internet domain name
functions to the global multistakeholder community.'' Members of our
community have been involved in both the Working Group (WG) on
stewardship transition and the WG on enhancing ICANN accountability.
Representatives from civil society have participated throughout,
contributing substantively on a range of issues from the structuring of
the posttransition IANA; to working to ensuring the continued
stability, continuity, and resiliency of the DNS; to bringing about a
commitment that ICANN will recognize and meet its human rights
obligations going forward.
When the Internet community came together in Marrakech in March
2016 to endorse and forward the IANA transition package to NTIA, there
was consensus that the product of two years of challenging hard work
was robust and credible and met the key NTIA criteria. The undersigned
civil society and public interest groups believe that the IANA
transition is a positive development for the Domain Name System and for
the Internet at large, and that the process to develop the transition
proposal has been a successful expression of multistakeholder
approaches to Internet decisionmaking.
The transition is important
The Internet has been instrumental in promoting civil liberties and
universal human rights, a goal shared by the United States government.
As a global platform for the free flow of information, the Internet has
facilitated unprecedented expansion of free expression and freedom of
assembly & association. Simply put, the Internet has become an
indispensable vehicle for the exercise of human rights around the
world. The continued functionality of the open, interoperable, global
Internet is a top priority shared by our organizations because it is
essential to protection of human rights in the 21st century. Our
organizations depend upon the stable and secure operation of the
Internet to do our work every day, as do the human rights defenders,
journalists, and other civil society groups we work with around the
world.
Many of the undersigned organizations have worked with ICANN's
staff and community on the structure of the transition and are
committed to continue holding ICANN accountable to its human rights
obligations after the transition. We believe that the multistakeholder
model and governance structure of ICANN is the best way to empower
global civil society along with the technical and business communities
who have an interest in the free and open global Internet. We believe
that supporting the participation in ICANN of a diverse international
multistakeholder community that shares a common interest in openness
and innovation is the most robust long term strategy for preventing any
governments or other multilateral entities they may commandeer from
steering the DNS in a direction that would be much less supportive of a
free and open global Internet. Further, we see this proposal as an
effective path to continue stable and resilient DNS administration that
supports the interests of public and private stakeholders across
societies and industries.
For those reasons, we strongly support the plan to transition
oversight of the IANA functions to the global multistakeholder
community. The IANA functions, which include management of Internet
number resources and the DNS, help keep the Internet global, scalable
and interoperable. We believe that executing upon the IANA transition
is the best way to ensure the continued functionality of the global
Internet and to protect the free flow of information so essential to
human rights protection.
Delaying or blocking the transition is not in the interest of
stakeholders
The transition of these functions away from the U.S. Government
removes an excuse for authoritarian countries to demand greater
oversight and regulation of Internet issues. Any delay in the transfer
of these management functions to the global multistakeholder community
could have the effect of undermining the openness and interoperability
that has characterized the Internet to date. This is because the open,
interoperable, global Internet did not arise out of agreements between
governments, but rather through communityled innovative approaches by a
diversity of stakeholders. In many ways, this transition is returning
the Internet and DNS to the open multistakeholder governance model that
characterized and fostered its first few decades of growth.
Failure to move ahead with the IANA transition will empower those
who advocate for governments alone to manage or regulate the Internet,
without equal involvement of the private sector or civil society. Delay
will encourage those who favor a governmental, intergovernmental, or
solely multilateral model of Internet governance, whether implemented
through the United Nations' International Telecommunication Union (ITU)
or some other government-dominated, non-multistakeholder body.
Yet, the importance of the transition to realizing human rights and
the empowerment of Internet users around the globe does not seem to be
shared by all. We read with concern the mischaracterizations of the
IANA transition plan's proposed human rights commitment for ICANN in
the May 19 letter from Senators Cruz, Lankford, and Lee to U.S.
Department of Commerce Secretary Pritzker and Assistant Secretary for
Communications and Information Strickling. While we share the Senators'
stated desire to protect Internet freedom, we note that their proposed
solution of delaying the IANA transition will unintentionally have
exactly the effect they hope to avoid: Delay would incur risk of
increasing the role for foreign governments over the Internet and
undermine free speech. The suggestion in the letter that the commitment
that is sought of ICANN to respect its human rights obligations ``would
open the door to the regulation of content'' is frankly puzzling and
clearly incompatible with the further defined and limited ICANN mission
in the transition plan.
The consequence of failure to move ahead with this transition will
be to reinforce the power and influence of those who would prefer a
less open, less innovative, less global Internet platform. We believe
this could have significant implications for human rights worldwide, as
well as undermine U.S. interests and values. We strongly believe that
the best way forward is to support a strong and accountable
multistakeholder system that enables civil society groups, business,
and technical community members from all over the world to participate
in ICANN independently of their governments.
Conclusion
It is the view of the undersigned civil society organizations that
the IANA transition will confirm the legitimacy of multistakeholder
approaches to Internet policy and governance, will result in a stronger
and more empowered community within ICANN and ensure that the Internet
community and not ICANN or one government is responsible and
accountable for the stability, security and resiliency of the Internet
going forward. This multistakeholder transition both protects the
Internet and best serves stakeholder interests. Blocking or delaying
the transition would strengthen the hand of those who do not believe in
or support an open Internet and would encourage further government
intervention and control.
Signed,
Access Now
Article19
Centre for Democracy & Technology
Human Rights Watch
Open Technology Institute
Public Knowledge
Ranking Digital Rights (Rebecca MacKinnon)
Senator Klobuchar. Ambassador Gross, at our last hearing on
this topic, I asked you about the accountability working group,
and you testified that accountability is incredibly important.
What aspects of the accountability proposal give you and the
companies you represent confidence that ICANN will remain
accountable after the transition?
Ambassador Gross. Thank you very much, and I appreciate
your remembering our discussion about this a year or so ago.
There was tremendous focus on that very issue over the past
year or so, and thanks to the hard work by many people, some of
whom are at this table, not including myself, the processes
that have been often referred to as being very complex and
lengthy are designed to ensure exactly what you're talking
about, to make sure that all the voices are heard and that the
organization is truly accountable in a proactive fashion.
I would note that there's new leadership at ICANN. In fact,
I think yesterday there was a new CEO who just began, someone
who I know and respect and I think will bring tremendous fresh
insights into the way in which ICANN will be operating. So I
feel very confident that the processes will, in fact, ensure
that ICANN is accountable, not just to individual parts of the
Internet community, but to the entire Internet community.
Senator Klobuchar. Very good.
Mr. DelBianco, at our last hearing on the IANA transition,
I asked Fadi Chehade, who is the former CEO of ICANN, about the
process for stress testing in advance of the transition. He
testified that many of the tests were developed based on the
criteria already set out for transition, and I understand you
led the working group that applied the stress tests to the
accountability proposal. Do you want to comment on that and
whether the proposal satisfies the criteria?
Mr. DelBianco. Thank you, Senator Klobuchar. A few of the
stress tests were suggested by the hearing that you held last
February, such as the accountability agreements that were in
place or whether ICANN would change its principal place of
business to avoid a U.S. jurisdiction. Those are just two of
the 37 stress tests that we eventually analyzed.
The community working group examined today's ICANN versus
the proposed ICANN and concluded that without a doubt the new
accountability mechanisms gave us the ability to hold that
organization accountable far better than the current system we
have today.
Senator Klobuchar. Thank you.
Mr. Sullivan, Senator Ayotte and I worked closely with
ICANN to address concerns about the expansion of top level
domain names in the system that goes back years. At our last
hearing on the IANA transition, we heard about how ICANN was
able to address potential risks to consumers, businesses, and
law enforcement during the expansion. In your testimony, you
emphasized that the new accountability procedures are built on
ICANN's existing structures.
Do you think the experience of implementing the top level
domain expansion will help ICANN address new policy challenges
that emerge after the transition? Just comment generally about
this top level domain name issue.
Mr. Sullivan. Thank you. First of all, I think that it has
been helpful. But there's a second piece of this transition
that I want to emphasize in this context, and that is,
historically, there has been a little bit of confusion about
ICANN's role here, because it did two things. It did the IANA
registry, which is the simple operation of just writing the
things down and publishing them on the Internet, and it did the
policy functions about the domain names at the top level.
What this transition does is it makes really crystal clear
that these are different functions and they're in separate
places and it puts them separately. So it ceases the confusion
that I sometimes notice. It's as though people have confused,
you know, the Department of Motor Vehicles, where you register
your car, and this committee.
You know, there are the policy questions, and they're
important. And then there is the simple writing things down,
and this transition actually makes that much clearer. So it
protects this technical function from all of those policy
discussions, which are important and they need to go on, and
they will need to go on in the future. But you keep these
things separate, and that makes for a much safer system
overall.
Senator Klobuchar. OK. Does anyone else want to comment on
that, the domain names?
[No verbal response.]
Senator Klobuchar. All right. Thank you very much.
The Chairman. Thank you, Senator Klobuchar.
Senator Markey?
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Mr. Chairman, very much.
Good to see you again, Mr. Beckerman. I remember you well
from being the Republican counsel on the Energy and Commerce
Committee for all of these issues.
You know, it's, to me, the most important innovative
technology of our lifetimes. And when a kid from Holliston,
Massachusetts, can come up with an idea like Instagram and then
sell it to a dropout from Harvard for a billion dollars, you
know there's a good thing going here on the Internet, and we
don't want to jeopardize it. We want to protect it.
There are so many telecommunications giants, combined with
the Chamber of Commerce, combined with human rights
organizations that have supported the domain name transition.
From your perspective, Mr. Beckerman, how will the transition
benefit American businesses?
Mr. Beckerman. Thank you, Senator. It's good to see you as
well. I think part of the reason why this transition is
important and is an improvement over the status quo is that,
directly to your point, it's giving the interests that have the
most at stake, businesses large and small, medium sized
businesses, technologists, civil society, and even Internet
users, the stake that they need to make sure that the system
continues and that we can have future Instagrams and future
Facebooks and everything else around the world and not have
other interests take over and block the innovation that you've
seen so closely there in Massachusetts.
Senator Markey. Thank you.
Mr. DelBianco, how does it help the business community?
Mr. DelBianco. Two ways. The business community under the
new bylaws can participate in challenging Board decisions
against a tightly constrained set of bylaws. We've never had
the ability to do a community-based challenge that we could
enforce in the courts.
Second is that it's not so much about sending a message or
appeasement or sending a signal as much as it is about removing
the target. By the U.S. obliterating the role of one government
holding the IANA contract, that ceases to become the thing that
the U.N. covets to take over.
Senator Markey. Ambassador Gross, we know that an
alternative to the multistakeholder model are plans proposed by
a number of countries, including China and Russia, who are
suggesting measures that strike at the core of what makes the
Internet great. Can you provide us with some specific examples
of what Russia and China are proposing as an alternative to the
structure that we're discussing today?
Ambassador Gross. Yes. Thank you very much, Senator. Those
countries--and I would say with Russia in the lead here on this
particular issue--would seek to enhance the role of the U.N.
and, in particular, the ITU to be the primary place for the
discussion and resolution of Internet-related issues and to
regulate aspects of the Internet.
I would note that right after--as I mentioned earlier,
right after the Marrakech meeting of ICANN, when all of this
came together, not more than a month later, the foreign
ministers of Russia, China, and India met in Moscow and issued
a communique, and they said explicitly that the need to
internationalize Internet governance and to enhance in this
regard the role of the International Telecommunications Union.
Based on my experience, I believe foreign ministers when they
tell me that they're going to do something I don't like.
Senator Markey. And why would that not be as good, putting
it at the ITU as opposed to under the framework which we're
discussing today?
Ambassador Gross. There are many reasons, but at the core,
it is that the ITU, which is an incredibly important
organization for the United States and for the world, is a
multilateral organization, not a multistakeholder organization.
It does not give the same rights to the technical community, to
civil society, to private sector, and to others. So it would be
a one-size-fits-all type of organization that would not allow
for diverse voices and the innovation that has been the
hallmark of the Internet.
Senator Markey. So since Tim Berners-Lee invented the World
Wide Web in Bern, Switzerland, and now operates the World Wide
Web Consortium out of MIT to have this international governance
openness architecture model, there has been kind of a multi-
constituency way in which the Internet has been governed,
operated. So that's a very important set of principles that I
think we want to understand.
And if it moves over to the International
Telecommunications Union, it moves over to a different model
altogether that ultimately could be much more dangerous and put
much more control in the hands of foreign ministers and defense
ministers in terms of the decisionmaking rather than this
broad-based Internet constituency that has developed over the
last 25 years across the planet.
So we thank you, Ambassador Gross, and we thank all of you
for being here today.
The Chairman. Thank you, Senator Markey.
I just want to raise one last point. And, by the way, this
has been a great discussion. Thank you all very much for all
the different perspectives that you've shared, and you've
answered a lot of questions for members of this committee and
our staffs that hopefully will shed further light on the
discussion of this very important subject moving forward.
But I want to direct a question to Mr. Sullivan, because it
has been raised a number of times here today, and that's the
concern about the Internet being captured by foreign
governments or other bad actors if U.S. oversight of IANA is
relinquished. So speaking from your perspective as an Internet
engineer, could you please describe to the Committee how
authoritarian countries like Iran or Russia or China could use
a captured ICANN to disrupt the Web outside of their own
borders, including inside the United States?
Mr. Sullivan. Thank you, Mr. Chairman. The answer is they
can't. The whole system is designed to prevent that kind of
thing. Countries can do things inside their own borders, but
they cannot subvert the Internet's design in order to cause
other people to do things. That's the way a voluntary
Internetwork of multiple other networks works. On my networks,
I make my rules. If somebody else wants to make rules for my
network, they can't because I run it.
That's the key strength here, and that's the reason that we
need to get the governments out of this business, because it
sends this message that it could be controlled. It can't be.
It's designed not to be. They can't take it over.
The Chairman. What's the technical DNS mechanism at ICANN
that these countries would use to censor the Internet in other
countries?
Mr. Sullivan. So the only thing that ICANN controls is the
root zone, the very top of the DNS. So each name in the DNS has
these dots in it. You're familiar with the dots. And each dot
is actually a point where somebody else can take over the
operation of the name. So, for instance, in the case of a
domain name that I happen to run, anvilwalrusden.com, the root
delegates dot-com to a company called Verisign. They operate on
the dot-com registry, and then I operate the anvilwalrusden.com
domain.
So the only thing that you can get control over in this
case is the root zone, if you could get control over it, and
that would--I mean, in the wildest fantasy, somebody could take
this over and they could de-delegate, say, dot-com from the
root, and that would prevent everything underneath dot-com from
working. But they cannot prevent a single domain name from
working by controlling the root, because they can only control
the delegation to the next level down.
This is a key strength of the way the DNS is designed. It's
a fundamental thing about it, that it's a distributed
operation, and that means that you don't have any control in
any one place. This basic fact of the way all of the pieces on
the Internet are designed is this distributed operation, and
distributed operation makes it more resilient and resistant to
control.
The Chairman. So what you're saying is that there isn't any
way in which China could use ICANN to censor the Internet in
the United States?
Mr. Sullivan. Exactly correct.
The Chairman. Well, I think that's an important point,
because, obviously, it has come up a lot.
Well, look, again, I want to thank you all for your
participation and for all your good work in this area. This is
an issue that we'll be giving a good amount of attention to
over the course of the next several months for obvious reasons.
So I would just say that we'll keep the hearing record open
for 2 weeks, during which time Senators are asked to submit any
questions for the record. Upon receipt, we would ask the
witnesses to submit their written answers to the Committee as
soon as possible.
Thank you all very much. This hearing is adjourned.
[Whereupon, at 12:10 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Bill Nelson, U.S. Senator from Florida
Nearly two decades ago, the U.S. Federal Government began to take
the steps necessary to transfer control of the technical and
operational aspects of the Internet to the broader international
Internet community. The government recognized that although the
foundations of the Internet may have been laid in the United States,
the Internet itself was a global institution.
Today, the Committee will hear from stakeholders about the plan
developed by the global Internet community to complete the work of
privatizing the technical elements of the Internet begun in 1998. I
want to commend the work done by hundreds of representatives from
business, government, and civil society to develop a transition plan
for the IANA functions.
This proposal is a concrete demonstration that the multistakeholder
model of international Internet governance works. And it reminds all of
us in Congress about how important it is that we remain committed to
this model and its ability to help maintain a free and open Internet.
The plan that has been presented to the U.S. Government is the
product of months of hard work, and represents a good faith attempt to
develop a proposal that meets the requirements for the transition set
forth by NTIA. I am pleased that we are here today conducting our own
oversight of this transition and of the plan.
The broad Internet stakeholder community strongly supports the
transition plan and believes that it meets NTIA's requirements,
including ensuring that the functions, and ICANN itself, cannot be
captured by another government or intergovernmental body. I trust that
NTIA will conduct a thorough review of the proposal to affirm that it
meets all of its requirements. And I know NTIA will monitor the work of
ICANN in the coming months to make necessary changes to its bylaws and
implement other reforms essential to a successful IANA transition.
The transition is widely supported by the U.S. business and tech
community, who believe that completing the transition is an essential
diplomatic tool to bolster U.S. international technology and
communications policies. Congress itself has spoken in the past with a
single voice about the need to prevent fracturing of the Internet and
the importance of bolstering the multistakeholder model of
international Internet governance. In fact, NTIA and the State
Department just filed formal comments in China the other day affirming
our national commitment to the decentralized model of international
Internet governance and opposing China's proposed attempt to thwart
that model.
I know that some continue to believe that the IANA transition
should not happen, or prefer to put new hurdles in the way of the
transition as a way to maintain the status quo. The time for delaying
this transition is over.
______
Prepared Statement of Chris Calabrese, Vice President, Policy,
Center for Democracy & Technology
Chairman Thune, Ranking Member Nelson, and members of the
Committee:
Thank you for the opportunity to submit these comments on behalf of
the Center for Democracy & Technology (CDT). CDT is a nonpartisan,
nonprofit technology policy advocacy organization dedicated to
protecting civil liberties and human rights on the Internet and around
the world. We have been fully involved in the Internet Assigned Numbers
Authority (IANA) functions transition since it was announced by the
National Telecommunications and Information Administration (NTIA) in
March 2014. We have participated in both the Working Group on IANA
stewardship as well as the Working Group on enhancing the Internet
Corporation for Assigned Names and Numbers' (ICANN) accountability. Now
that the IANA transition plan has been forwarded to NTIA for inter-
agency review, CDT and others are reviewing the draft ICANN bylaws and
participating in the implementation planning for the post-transition
IANA. We are committed to ensuring that the transition fully reflects
the intent of the multistakeholder community's transition and
accountability proposals.
Replacing the oversight role of the NTIA is not a simple matter,
nor is changing the governance structure of an organization, let alone
one as unique as ICANN. Yet the global multistakeholder community rose
to the challenge and over two years crafted a robust and credible
transition plan. The work was considerable: the IANA transition was
organized, planned, discussed and debated in more than 1,100 events
around the world, with stakeholders spending more than 800 hours in
meetings and exchanging more than 33,000 messages on mailing lists.
This community effort shared common goals: the continued stability,
security, and resiliency of the Domain Name System (DNS), an IANA
function that continues to operate in a neutral and transparent manner,
and an ICANN that is fully accountable to its global, multistakeholder
community.
Throughout the work on the transition we have been acutely aware of
the need to satisfy NTIA's requirements that the proposal: (1) support
and enhance the multistakeholder model; (2) maintain the security,
stability, and resiliency of the Internet DNS; (3) meet the needs and
expectation of the global customers and partners of the IANA services;
and (4) maintain the openness of the internet. NTIA further stated that
it would not accept a proposal that replaces the NTIA role with a
government-led or an inter-governmental organization solution. CDT
believes that the IANA transition plan that was forwarded by the
multistakeholder community to NTIA at the March 2016 ICANN meeting in
Marrakech accounts for and satisfies these requirements.
The IANA transition plan places the responsibility for the Domain
Name System firmly with ICANN's multistakeholder community. This
community has been successfully developing policies for the DNS through
multistakeholder processes since 1998. It comprises professionals from
across the main stakeholder groupings of ICANN--businesses, registries
and registrars, the technical community, entrepreneurs, academia, civil
society, and users--all of whom are committed to the stability,
security, and resiliency of the internet. Transitioning the U.S.
Government's administrative role and stewardship to this community is
not a step into the unknown; it is a transition to a highly competent
and experienced community that has managed the DNS to date and will
safeguard it into the future.
Nor is this transition imperilling the Internet or making it more
susceptible to government capture; safeguarding against this potential
was another key criteria for NTIA and for the community that developed
these proposals. To date, the United States Government's role has been
effectively hands-off, entrusting the management of the Internet to
this community since the creation of ICANN. As NTIA noted in its press
release announcing its intent to transition oversight of the IANA
functions in March 2014, the U.S. Government has ``envisioned that the
U.S. role in the IANA functions would be temporary. The Commerce
Department's June 10, 1998, Statement of Policy stated that the U.S.
Government ``is committed to a transition that will allow the private
sector to take leadership for DNS management.''
The U.S. Government's current role is two-fold: the first is a
clerical function to ensure that any changes to the root zone file have
followed the appropriate procedures; the second is a stewardship role
that is largely related to the award of the contract to ICANN for the
provision of the IANA services in other words, if ICANN had not
fulfilled its contractual obligations at some point, NTIA could have
awarded the IANA functions contract to another entity). While the U.S.
Government will be stepping back, its role will not be assumed by other
governments but by the community that has managed the DNS all along.
This community has delivered a transition plan that empowers the whole
of the multistakeholder community, which was the goal of the U.S.
Government when setting up ICANN and a key NTIA criterion for the
transition proposal to be successful. The transition does not empower
governments alone--and certainly not individual governments.
When the community and the ICANN Board endorsed the IANA transition
plan in Marrakech, it was clear that this significant achievement could
not have happened without the input of the broad cross-section of the
global multistakeholder community and the range of business, technical,
legal, and policy know-how and expertise that this input brings. The
IANA transition plan has been a proving ground for multistakeholder
approaches to Internet governance. This two-year process has delivered
two proposals that are possibly the most successful expression of
multistakeholder approaches to Internet governance yet. And the two
Working Groups have demonstrated the efficacy of processes that are
open, transparent, and inclusive--characteristics that are essential to
ensuring that the openness of the Internet is maintained.
The transition plan both supports and enhances the multistakeholder
model; it also meets the needs and expectations of the global customers
and partners of the IANA services. The accountability measures that
have been put in place reinforce the role of the multistakeholder
community in ICANN and place important checks on the organization's
mission. The new, limited powers provided to the community ensure that
the community as a whole--and no one stakeholder group--remains firmly
in control when it comes to ICANN's governance.
These new community powers include, among others, the powers to:
(1) reject ICANN Budgets, IANA Budgets, or Strategic/Operating Plans;
(2) reject changes to ICANN's Standard Bylaws; (3) approve changes to
new Fundamental Bylaws and Articles of Incorporation; (4) remove an
individual ICANN Board Director; (5) recall the entire ICANN Board; (6)
initiate a binding Independent Review Process (where a panel decision
is enforceable in any court recognizing international arbitration
results); and (7) reject ICANN Board decisions relating to reviews of
the IANA functions. From rejecting strategic plans and budgets to, in
the worst case of board-overreach, removing and replacing the entire
ICANN Board, these accountability powers are an effective way of
ensuring that the stability and continuity of the Internet remain front
and center at ICANN post-transition.
Of course, these powers may not be exercised on a whim; the
community must go through a rigorous process of engagement and
escalation that should exhaust all possibilities of resolution before
pursuing the use a particular power. Should there be no resolution,
there must be agreement to use a power among a minimum number of
constituencies within the ICANN community. This ensures that no one
party can unilaterally take actions that could impact ICANN, the IANA
functions or the DNS. Post-transition accountability will reside with
the empowered ICANN multistakeholder community as a whole; its
significant expertise and know-how will very capably guide ICANN, the
IANA functions, and the DNS in the future.
The imperative that the transition must not imperil the security,
stability, and resiliency of the Internet has been foremost in the
community's mind. The IANA transition plan emphasizes continuity of
operations by having ICANN be the IANA functions operator post-
transition. At the same time, the plan provides mechanisms for the
community, and particularly the global customers and partners of the
IANA functions, to ensure that ICANN meets agreed performance targets.
Were ICANN to fail to meet these targets, the community could change
the IANA functions operator--in other words, seek an alternative to
ICANN to undertake essential DNS-related administrative tasks.
It is important to note that within the ICANN multistakeholder
community, the U.S. Government will continue to play its role in the
Government Advisory Committee, just as representatives of U.S.
businesses, registries and registrars, technical bodies, and civil
society organizations will continue to play their roles in their
respective constituencies. The transition plan does not diminish the
role of any stakeholder--quite the opposite: all stakeholders are
appropriately empowered to hold ICANN to account and to ensure that the
stability, security, and resiliency of the DNS post-transition.
Of course the community's work is not over. Work on the new ICANN
bylaws has been going smoothly and we hope they will be adopted by the
ICANN Board on May 27. Additional accountability-related work--known as
Work Stream 2--will continue beyond the transition in areas such as
human rights, community accountability, and ICANN transparency.
There is no doubt that the community and particularly the WGs must
remain vigilant in the implementation planning for the post-transition
IANA. But by producing a transition plan that is robust, credible, and
implementable--and, importantly, that satisfies NTIA's criteria--the
community's work on IANA stewardship and ICANN accountability paves the
way for the multistakeholder community to take on the mantle of
stewardship that the U.S. Government currently assumes. CDT is
convinced that the community and the U.S. Government can transition on
the anticipated date.
There are those who suggest that an extension of the contract
between NTIA and ICANN is needed because the IANA transition plan is
untried and untested. We do not support such an extension. It would
indicate a clear lack of confidence in the multistakeholder transition
plan and would undermine not only the legitimacy of ICANN's community
but also the legitimacy of multistakeholder approaches to Internet
policy more generally.
Nor, for similar reasons, does CDT support a call for a vote in
Congress on the IANA transition. A vote would represent an attempt by
one government to unilaterally decide the future of key technical
functions of the internet--precisely the outcome the IANA functions
transition is designed to avoid. Such an act would only provide fuel to
those governments who seek greater government control over the Internet
and who decry multistakeholder approaches around the world.
We must all understand that if there is an unwarranted delay or if
the transition does not occur, the multistakeholder model of Internet
governance could be irretrievably undermined and there would be
unprecedented ammunition for those nations that want to see increased
intergovernmentalism and state control of the internet. A failure to
transition would be seen as a license by some governments to assert
greater control over the Internet and place greater restrictions on its
openness. This, in turn, would jeopardize the future of the internet,
its role in promoting free speech and human rights, and the significant
benefits it can bring to societies and economies across the globe.
______
Obama's Internet Endangerment
By Rick Manning--7 Jun 2016
Should oversight over the Internet naming conventions and top-level
domains be relinquished to a group that just four years ago was
in
danger of being fired as a vendor due to its lack of
accountability?
Some, like Michael Chertoff, say yes. He worries in Politico that,
``If Washington fails to follow through on its longstanding commitment
to privatize the DNS, it will fuel efforts by authoritarian regimes to
move Internet governance to the United Nations--and potentially put the
Internet, as we know it, at risk.''
Apparently Chertoff has not been keeping up to date on the latest
happenings in the world of Internet governance, because if he had, he
would have acknowledged the State Department's concern that China has
already developed its own Internet root zone and DNS system. For all
intents and purposes, the Chinese government has chosen to put the
tools in place to break the Internet any time its leaders choose. And
I'm confident that Secretary Chertoff would agree that in today's
environment, the Chinese government is going to proceed according to
its interests.
What's more, he would know that China attempted to cut a deal with
the holders of the top-level domain .XYZ which is the sixth largest in
the world to exclude the use of 12,000 words in domain names in
exchange for gaining access to their markets. This initial attempt by
the Chinese to flex their market muscle to control content can only get
worse and it provides little comfort to those of us with offensive
words like www.getliberty.org for a domain name to lose the soft power
of the United States as an offset to the Chinese.
However, what is most shocking about Chertoff's piece is his
failure to even mention that the architect of the transition of
multistakeholder model for Internet governance under current U.S.
vendor ICANN, Fadi Chehade, no longer is leading the California-based
tax exempt non-profit, but on the eve of the transition has accepted a
role as a senior, unpaid adviser to a Chinese government-led effort to
counter ICANN.
This is the true elephant in the room.
In political terms it is as if the primary campaign manager for
Hillary Clinton were to leave her campaign and sign up with Donald
Trump's general election effort bringing all the knowledge of the
systemic weaknesses of the campaign organization to an opponent eager
to exploit them.
No one in their right mind would be comfortable with that
arrangement, yet that is exactly the situation facing an untested,
vulnerable ICANN under a multistakeholder model suddenly freed from the
protection of the U.S. Government. A model that all the ``experts'' who
worked on it assure is impenetrable, an assurance eerily similar to the
one offered by those who built the Titanic before its maiden voyage
proved otherwise.
Chertoff states in his almost puerile missive of vague warnings
against a future United Nations control of the Internet that, ``While
authoritarian governments may be happy to see the U.S. relinquish its
oversight role, privatizing the DNS is a much better way to guarantee
broad support for the system among allies and the developing world for
the multistakeholder approach to Internet governance.''
In a nutshell, the argument is that an unaccountable ICANN
operating in an environment where the U.S. has the same say as Algeria,
with the real power divested to companies like Google and others is
more secure than the current situation where the United States can
stare down anyone who seeks to impose speech restrictions on the web as
China attempted recently.
Beyond the patent absurdity of the claim, it is equally absurd to
assume that the United Nations won't attempt to grab at a now ripe for
the plucking Internet governance role. Why do they want it so badly? It
would provide an independent funding source that the U.N. has always
craved.
While politicians in D.C. often put out press releases opposing
``taxing the Internet'', ICANN already taxes the Internet through its
fee structure for effectively leasing top level domain names. Anyone
who uses a .net address is already paying $1 to ICANN in a hidden pass-
through fee for that privilege as an example.
Verisign reports that at the end of 2015, there were approximately
314 million domain name registrations and growing each quarter. It
doesn't take a math major to see the allure of controlling the money
machine that creates these top-level domains and charges a fee for
every one that is purchased.
ICANN revenue in 2015 was $219 million from these and other fees,
and they have used some of this tax-free largesse to hire some of the
most prestigious firms in the U.S. to lobby for full control of this
system, free from having to worry about keeping their vendor contract
with the U.S. And for the same reason that ICANN wants to control this
money tree without real oversight, the nations who are a small part of
ICANN's multistakeholder structure will not be sated by the U.S. ceding
control. Instead, it is guaranteed that they will seek to grab the pot
of gold through a U.N. structure that would more directly benefit them,
and increase their power. Congress has wisely chosen to defund the
Obama Administration's effort to transfer oversight over Internet
governance to its vendor over the past two years. Now they need to get
behind the Cruz-Duffy Protecting Internet Freedom Act to extend the
contract for another two years, providing more time to stress test the
system, and measure the impact of Chehade's seemingly switching sides
in the debate. Notably, Senator Marco Rubio also recently circulated a
letter also urging an extension garnering the signatures of many of his
colleagues on the Senate Committee overseeing the issue.
One thing that the House Energy and Commerce Committee got right
when discussing this issue is that there will be no going back from the
transition. Given that, Congress needs to get it right, and for now,
that means extend the contract and let the next Administration re-
evaluate what Freedom of Information Act records show was President
Obama's hastily made decision.
The author is president of Americans for Limited Government
______
Response to Written Question Submitted by Hon. Marco Rubio to
Michael Beckerman
Question. The revised bylaws include provisions that ensure that
ICANN maintains the ability to enter into and enforce contracts with
registries and registrars, as well as include provisions that protect
from ultra vires challenge Public Interest Commitments (PICs) agreed to
by certain registries and registrars operating in the new gTLD
marketplace. Such PICs are meant to mitigate DNS abuse in the new gTLD
market, which is especially important as we see illegal behavior now
taking place, including the prevalence of child abuse imagery cropping
up for the first time in new gTLDs in 2015.
To what extent is the ICANN community, including the Board,
committed to ICANN's role in mitigating DNS abuse through
contract enforcement?
Does the accountability proposal put forward sufficiently
ensure that ICANN will enforce its contracts with registries
and registrars in this regard?
Answer. The Internet Association firmly supports the ability of
ICANN to enforce its contracts with registries and registrars. As a
group of companies entirely reliant on a stable and trustworthy
internet, it is in our interest to prevent abusive behavior in the
Domain Name System (DNS). Critical to that safe environment is a system
in which all stakeholders do their part to ensure illicit activity is
minimized. We believe that the community, through the provisions you
reference in your question, has preserved ICANN's ability to enforce
existing contracts. Notably, because the ICANN community is now
empowered to challenge action or inaction by the Board and is
developing additional accountability mechanisms as part of our ``IANA
Transition Work Stream 2'' efforts, it will be possible to ensure that
the Board is exercising oversight that results in ICANN's proper
execution of its enforcement role according to ICANN's bylaws.
At the same time, it is important to note that ICANN has a narrow
technical remit and, as ICANN CEO Goran Marby recently pledged, does
not have the authority or capability to ``interpret or enforce laws
regulating websites or website content.'' The Internet industry is
committed to working closely with ICANN to keep the Internet free and
open, while working within ICANN's remit to address illicit online
activity. This includes helping to ensure that Registry Agreements and
the Registrar Accreditation Agreement (RAA) are properly implemented.
Contrary to some misinterpretations, the RAA only requires domain name
registrars to ``take reasonable and prompt steps to investigate and
respond appropriately to any reports of abuse.'' This agreement does
not mandate that a registrar remove or delete domains; but rather that
it receive and investigate the abuse before determining the appropriate
next steps. Registrars are not equipped with the appropriate
enforcement tools to control, monitor, or remove specific content or
specific users who post unauthorized works to a domain.
In addition to working closely with ICANN, the Internet industry
also supports various industry-led efforts to develop guidelines and
best practices to prevent a range of illicit activity online.
______
Response to Written Question Submitted by Hon. John Thune to
Steve DelBianco
Question. Mr. DelBianco, I understand the argument that increasing
the threshold for the ICANN Board to reject advice from the GAC from 50
percent to 60 percent is offset by the fact that any GAC advice to the
ICANN Board must first achieve complete consensus among the 162
countries, meaning that the U.S., or any country for that matter, may
object to any advice the GAC might offer. But what about a scenario
where our government is asleep at the switch and fails to object, or
actually agrees with some terrible advice from the GAC? What safeguard
is in place against that type of scenario?
Answer. Your question assumes a scenario where no government--not
even the U.S.--would formally object to proposed GAC advice that would
be adverse to interests of American businesses and citizens. Under such
a scenario, there are additional safeguards in place to prevent
implementation of adverse GAC advice.
First, a new restriction on GAC advice is a requirement that advice
``is communicated in a clear and unambiguous written statement,
including the rationale for such advice.'' \1\ If the GAC advice lacked
clarity or rationale, the ICANN board would not be required to consider
that advice.
---------------------------------------------------------------------------
\1\ May-2016, Section 12.3, ICANN Bylaws, at https://www.icann.org/
en/system/files/files/adopted-bylaws-27may16-en.pdf
---------------------------------------------------------------------------
Second, the ICANN board can reject GAC advice with a vote of 60
percent of the directors. The board would take into account public
comments from non-governmental stakeholders, and may reject GAC advice
for any reason.
If the board rejects GAC advice, it must ``try, in good faith and
in a timely and efficient manner, to find a mutually acceptable
solution'' in consultation with the GAC. This is an obligation only to
``try,'' and does not oblige ICANN to find a solution that is
acceptable to the GAC. In these consultations, the board could propose
modifications to the GAC advice that would mitigate the adverse
element. But if GAC refused to adequately adjust its advice, the
board's decision to reject would still hold, and the GAC advice would
be set aside.
Third, if the ICANN board accepted such GAC advice, ICANN could be
stopped from implementing that advice by a challenge brought under the
enhanced Independent Review Process (IRP). An aggrieved party or the
Empowered Community can bring an IRP challenge based on actions of
ICANN to ``ensure that ICANN does not exceed the scope of its limited
technical Mission and otherwise complies with its Articles of
Incorporation and Bylaws.'' \2\ While an aggrieved party must pay its
own legal costs for the IRP, an Empowered Community IRP would mean that
ICANN must pay all legal costs.
---------------------------------------------------------------------------
\2\ Ibid, Section 4.3 a
---------------------------------------------------------------------------
To bring an Empowered Community IRP requires support of 4 of the 5
stakeholder groups in the Empowered Community, which includes the GAC.
However, the new bylaws ensure that governments could not block a
community challenge of ICANN Board's implementation of GAC advice. In
what is known as the ``GAC Carve-out'', the bylaws exclude the GAC from
the Empowered Community decision about whether to challenge a board
action based on GAC consensus advice, so the approval of just 3
stakeholder groups is required to challenge ICANN's acceptance of GAC
advice.
Several governments vigorously opposed these new bylaws provisions
to limit GAC influence and lock-in their consensus method of decision-
making. In a statement issued Mar-2016, France's minister for digital
economy complained about ICANN's new bylaws:\3\
---------------------------------------------------------------------------
\3\ 24-Mar-2016, ``French scream sacre bleu! as U.S. govt gives up
the Internet to ICANN'', at http://www.theregister.co.uk/2016/03/24/
france_slams_us_govt_internet_transition/
``Despite the continued efforts of civil society and many
governments to reach a balanced compromise, elements of this
reform project will marginalize states in the decision-making
processes of ICANN, especially compared to the role of the
---------------------------------------------------------------------------
private sector.''
Unnamed French foreign ministry officials also told Le Monde they
were unhappy with the end result, saying: ``This is an unsatisfactory
condition. The consensus requirement only produces warm water. And that
does not put the GAC on the same footing as the other committees of
ICANN.''
The French official is right--the GAC is not on the same footing as
other ICANN stakeholders. That, however, is by design. Notwithstanding
criticism from certain governments, the full package of transition
accountability measures sufficiently cabins governmental influence and
provides sufficient safeguards to block implementation of GAC consensus
advice that is adverse to the non-governmental Internet stakeholder
community.
Thank you for your question. I am at your service to elaborate on
these responses and address other questions and concerns you might
have.
______
Response to Written Questions Submitted by Hon. Marco Rubio to
Steve DelBianco
The revised bylaws include provisions that ensure that ICANN
maintains the ability to enter into and enforce contracts with
registries and registrars, as well as include provisions that protect
from ultra vires challenge Public Interest Commitments (PICs) agreed to
by certain registries and registrars operating in the new gTLD
marketplace. Such PICs are meant to mitigate DNS abuse in the new gTLD
market, which is especially important as we see illegal behavior now
taking place, including the prevalence of child abuse imagery cropping
up for the first time in new gTLDs in 2015.
Question 1. To what extent is the ICANN community, including the
Board, committed to ICANN's role in mitigating DNS abuse through
contract enforcement?
Answer. ICANN community members who developed the new
accountability proposal were committed to maintaining an Internet that
is not subject to government restrictions on free expression. At the
same time, we were committed to ensure that abuse safeguards in the new
gTLD registry contracts would continue to be enforceable, and not
subject to challenge under the more explicitly limited mission
statement for ICANN. All 7 ICANN stakeholder groups approved the new
proposal earlier this year, and both the ICANN board and NTIA accepted
the recommendations. Here is how this commitment was articulated in the
new bylaws:\4\
---------------------------------------------------------------------------
\4\ May-2016, Section 1.1 of ICANN Bylaws, at https://
www.icann.org/en/system/files/files/adopted-bylaws-27may16-en.pdf
ICANN's performance of its obligations or duties thereunder,
may not be challenged by any party in any proceeding against,
or process involving, ICANN (including a request for
reconsideration or an independent review process pursuant to
Article 4) on the basis that such terms and conditions conflict
with, or are in violation of, ICANN's Mission or otherwise
exceed the scope of ICANN's authority or powers pursuant to
---------------------------------------------------------------------------
these Bylaws (``Bylaws'') or ICANN's Articles of Incorporation.
This protection from challenge is applied to ``all registry
agreements and registrar accreditation agreements between ICANN and
registry operators or registrars in force on 1 October 2016,'' which
includes agreements and renewals that contain the abuse ``Safeguards''
requested by the GAC.
Such safeguards could still become part of registry and registrar
agreements negotiated in the future, as long as they avoid giving ICANN
new powers to ``regulate (i.e., impose rules and restrictions on)
services that use the Internet's unique identifiers or the content that
such services carry or provide, outside the express scope of Section
1.1(a).'' And the new bylaws expressly authorize ICANN to enter and
enforce contracts: ``ICANN shall have the ability to negotiate, enter
into and enforce agreements, including public interest commitments,
with any party in service of its Mission.''
Moreover, all registry and registrar contracts require
implementation and enforcement of any Consensus Policies that are
developed by the ICANN stakeholder organization for generic TLDs
(GNSO). These Consensus Policies are the mechanism by which the ICANN
community addresses DNS abuse that was not already or adequately
addressed in current contracts. For example, the GNSO developed policy
regarding display of information about domain name registrants (``Thick
Whois''). This policy will become binding and enforceable on all
registries and registrars once implementation is complete.
Question 2. Does the accountability proposal put forward
sufficiently ensure that ICANN will enforce its contracts with
registries and registrars in this regard?
Answer. The accountability proposal did not alter ICANN's existing
obligations to enforce its contracts and to enforce consensus policies
against registries and registrars. As always, anyone can bring contract
enforcement matters to the attention of ICANN's compliance department.
However, ICANN moves deliberately to investigate and respond to
enforcement complaints, not always to the satisfaction of those making
the complaint. Concerns about enforcement have historically centered on
ICANN's speed of follow-up and on differing interpretations of contract
terms and policies.
There are two primary ways that ICANN can be made to enforce its
contracts against registries and registrars.
First, affected parties can invoke the enhanced Independent Review
Process (IRP) if ICANN was failing to enforce its contractual
obligations and its inaction was in violation of ICANN's Commitments
and Core Values. The IRP is a binding process and decisions of the
independent reviewer can be enforced in California courts, or in any
court that recognizes international arbitration proceedings.
Second, affected parties may work within the ICANN stakeholder
organization for generic TLDs (GNSO) to amend and clarify any Consensus
Policy where ICANN's compliance department is taking a too narrow or
too broad interpretation of the policy.
The sufficiency of these measures will almost certainly be tested
in the years ahead. If the ICANN community finds these measures
insufficient, the next step is to propose changes that increase
contract enforcement powers over registries and registrars. Such
changes could be proposed as recommendations from formal reviews of
accountability and transparency, or of the review of the new gTLD
program. Under the new bylaws, registries and registrars alone would
not be able to block a community challenge if ICANN refused to
implement such bottom-up recommendations for stronger contract
enforcement.
NetChoice appreciates the hard work accomplished in this regard so
far and believes that ICANN and the multistakeholder community should
continue to work collaboratively to mitigate DNS abuse within the
confines of ICANN's mission.
Question 3. Section 27.2 of the new ICANN bylaws lays out the
process for developing and adopting Work Stream 2 issues, which include
important matters like human rights, jurisdiction, and improvements to
ICANN's transparency. The stated process involves CCWG development of
the proposal followed by dialogue and exchanges with the Board.
Subsection (v) concludes, ``If, after the CCWG-Accountability modifies
a Work Stream 2 Recommendation, the Board still believes it is not in
the global public interest to implement the Work Stream 2
Recommendation, the Board may, by a vote of a two-thirds majority of
the Board, send the matter back to the CCWG-Accountability for further
consideration. The Board shall provide detailed rationale to accompany
its action. If the Board determines not to accept a modified version of
a Work Stream 2 Recommendation, unless required by its fiduciary
obligations, the Board shall not establish an alternative solution on
the issue addressed by the Work Stream 2 Recommendation until such time
as CCWG-Accountability and the Board reach agreement.'' What is the
global public interest?
Answer. For several years, NetChoice argued that for purposes of
ICANN, the global public interest should be defined and limited to
ICANN's scope--the Domain Name System (DNS) and Internet Protocol
address numbers. During the recent transition planning, we proposed our
definition for global public interest: ``the availability and integrity
of registrations and resolutions''.
This definition would encompass global access to registering and
resolving (using) domain names anywhere in the world, in any script or
language, with the expectation that users of domain names could trust
that the name was not being used for fraudulent or abusive purposes.
Unfortunately, we were unable to garner consensus for that
definition. In fact, no single definition achieved consensus support,
so ICANN will continue to define public interest in the context of its
decisions and actions, as described in our next answer.
A definition of the public interest depends on the definition of
``public.'' The ``public'' is composed of multiple and diverse elements
that frequently have very different interests, thereby making it very
difficult to reach consensus on a single definition.
Question 4. How will the global public interest be determined?
Answer. Global public interest is defined by the multistakeholder
community, in exercising its role in developing policies and holding
the ICANN corporation and board accountable for its actions and
inactions. This does not result in community agreement on a formal
definition of ``global public interest''. Rather, the new Commitments
and Core Values in ICANN bylaws defer to the multistakeholder community
to ascertain public interest in the context of each situation:\5\
---------------------------------------------------------------------------
\5\ May-2016, Section 1.2 of ICANN Bylaws, at https://
www.icann.org/en/system/files/files/adopted-bylaws-27may16-en.pdf
Seeking and supporting broad, informed participation reflecting
the functional, geographic, and cultural diversity of the
Internet at all levels of policy development and decision-
making to ensure that the bottom-up, multistakeholder policy
development process is used to ascertain the global public
interest and that those processes are accountable and
---------------------------------------------------------------------------
transparent;
While this approach does not give us a single, simple definition of
global public interest, it does have the advantage of letting Internet
stakeholders define the concept, instead of leaving that definition to
ICANN's management and board.
Question 5. Under the outlined process, could the Board
indefinitely delay implementation of Work Stream 2 with the
justification that the proposed Work Stream 2 proposals are not in the
global public interest?
Answer. No, the board cannot ``indefinitely'' delay implementation
of a Work Stream 2 recommendation for which the ICANN community has
consensus support to force implementation of its recommendations.
The rationale for separating Work Stream 1 and 2 tasks was to
identify what had to be implemented before the IANA contract expired,
after which there would be less leverage to force accountability
measures that would be resisted by ICANN's board. That's why Work
Stream 1 includes new powers to block the board's budget, overturn a
board decision through an IRP challenge, and to recall the board of
directors. The community deemed those powers sufficient to force a
future ICANN board to accept Work Stream 2 changes that are developed
and supported by community consensus.
First, the community can challenge the board with an Independent
Review Process (IRP) for failing to follow its bylaws commitment to
honor the bottom-up multistakeholder process. This challenge would
directly address the board's argument that proposed recommendations
were not in the ``global public interest''. As noted above, ICANN's new
bylaws defer to the community--not the board--to define the global
public interest:
. . . ensure that the bottom-up, multistakeholder policy
development process is used to ascertain the global public
interest.
An IRP decision is a binding process taking approximately 6 months,
and decisions of the independent reviewer can be enforced in California
courts, or in any court that recognizes international arbitration
proceedings. So IRP decisions could terminate any delay that was being
caused by the ICANN board.
Second, the community can recall the ICANN board of directors, and
designate new directors who would understand that Work Stream 2
recommendations should be accepted. If these new directors failed to
accept the recommendations, they too could be recalled.
Taken together, these two measures ensure that ICANN board members
cannot indefinitely delay implementation of recommendations that have
the consensus support of the ICANN community.
Question 6. Since such a delay would be consistent with the bylaws
and would be within the scope and mission of ICANN, aside from spilling
the Board, what would be the tools available to the ICANN community to
overcome Board resistance and what are the steps for exercising those
tools?
Answer. The whole point of separating Work Stream 1 and 2 tasks was
to identify what had to be implemented before the IANA contract
expired, after which there would be less leverage to force
accountability measures that would be resisted by ICANN's board. That's
why Work Stream 1 includes new powers to block the board's budget,
overturn a board decision through an IRP challenge, and to recall board
directors. The community deemed those powers sufficient to force a
future ICANN board to accept Work Stream 2 changes that are developed
and supported by community consensus.
First, the community can challenge the board with an Independent
Review Process (IRP) for failing to follow its bylaws commitment to
honor the bottom-up multistakeholder process. This challenge would
directly address the board's argument that proposed recommendations
were not in the ``global public interest''. As noted above, ICANN's new
bylaws defer to the community--not the board--to define the global
public interest:
. . . ensure that the bottom-up, multistakeholder policy
development process is used to ascertain the global public
interest.
An IRP decision is a binding process taking approximately 6 months,
and decisions of the independent reviewer can be enforced in California
courts, or in any court that recognizes international arbitration
proceedings.
Second, as you note, the community can recall the ICANN board of
directors, and designate new directors who would understand that Work
Stream 2 recommendations should be accepted. If these new directors
failed to accept the recommendations, they too could be recalled.
If these new directors failed to accept the recommendations, they
too could be recalled.
Question 7. In your opinion, what would be the result of having a
modest delay in the transition for the stakeholders and international
community to make sure the accountability measures work properly?
Answer. During the committee's hearing back in May-2016, I
acknowledged that a modest delay of a few months might be useful in
order to verify the creation of new organizational elements and the
adoption of new ICANN Bylaws and Articles of Incorporation. At this
point, these implementation steps are substantially complete. The
required bylaws, articles, and entities have been put into place to
implement the community's transition proposal.
Your question suggests that a modest delay would allow the
community to make sure that accountability measures work properly. But
there is no way to predict when the ICANN community would exercise its
new powers to challenge a board decision or recall directors. These are
extraordinary measures that are not expected to be exercised often.
Moreover, one reason for having these accountability measures
available is that they will deter the ICANN board from defying
consensus recommendations of the ICANN community. So, the board is
likely to accede rather that force the Empowered Community to invoke
its new powers.
So, a modest delay of several months would bring no reasonable
expectation of seeing how well new accountability measures are working.
Some critics of the transition might therefore call for a longer
delay, but that would re-kindle the fire at the United Nations, who
sees the legacy U.S. Government role as something they should be doing
instead. With this transition we are eliminating the role where one
government (the U.S.) holds ICANN accountable, and we are instead
making ICANN accountable to the community of Internet stakeholders.
This means the U.N. can no longer point to the U.S. Government role and
say the U.N. should step into those shoes.
An indefinite delay of transition would signal that the U.S.
Government does not actually trust the multistakeholder model that we
are encouraging other governments to trust. The governments of China
and Russia would likely exploit any delay to persuade moderate
governments that the U.N. needs to replace the legacy U.S. role--a
result that none of us would find acceptable.
At this point, an indefinite deferral of this transition could
create far more downside than upside for the interests of U.S.
Government, businesses, and citizens.
Question 8. Do you see potential benefits to a modest delay?
Answer. During the committee's hearing back in May-2016, I
acknowledged that a modest delay of a few months might be useful in
order to verify the creation of new organizational elements and the
adoption of new ICANN Bylaws and Articles of Incorporation. At this
point, these implementation steps are substantially complete, so there
is no longer any benefit there to defer the transition.
As explained in our response to your previous question, we believe
the risks of indefinitely deferring this transition outweigh the
minimal potential benefits of delay.
Thank you for these questions. I am at your service to elaborate on
these responses and address other questions and concerns you might
have.
______
Response to Written Question Submitted by Hon. John Thune to
Hon. David A. Gross
Question. Ambassador Gross, how should Senators assess the fact
that Russia, China, France, and Brazil all believe that this transition
proposal reduces the power of governments?
Answer. Some governments have expressed concerns that the
transition proposal limits governments' ability to participate in the
ICANN community on equal terms with other stakeholders. This is
because, post-transition, government participation in ICANN policy
development will be limited to a purely advisory role within the
Governmental Advisory Committee (``GAC''). The new ICANN bylaws confine
the GAC in two important ways. First, GAC ``advice'' to the ICANN Board
requires ``consensus,'' defined as general agreement in the absence of
any formal objection by any government, including the United States.
Second, GAC advice can be rejected by a 60 percent vote of the Board,
and government representatives cannot serve on the Board. Thus, in
order for governments to dictate Board action, they would first need to
obtain consensus (unanimous agreement) within the GAC, an organization
in which the United States and other like-minded countries take an
active role. Thereafter, any advisory decision still could be rejected
by a 60 percent vote of the Board.
The consequence of these developments is that governments that
failed to capture ICANN during the transition process now are
refocusing their efforts on other venues, including the United Nation's
International Telecommunication Union (``ITU''). In June, the
presidents of China and Russia issued a joint statement supporting a
multilateral global Internet governance system and ``maintain[ing]
[the] UN's important role in setting up global Internet governance
mechanisms.'' Russia, China, Saudi Arabia, and others also are focusing
on the ITU's upcoming World Telecommunication Standardization Assembly
(``WTSA''), which will address several important Internet public policy
issues. The ITU will be an important setting for post-ICANN debates
about the appropriate role for governments in Internet policy.
______
Response to Written Questions Submitted by Hon. Marco Rubio to
Hon. David A. Gross
Question 1. The revised bylaws include provisions that ensure that
ICANN maintains the ability to enter into and enforce contracts with
registries and registrars, as well as include provisions that protect
from ultra vires challenge Public Interest Commitments (PICs) agreed to
by certain registries and registrars operating in the new gTLD
marketplace. Such PICs are meant to mitigate DNS abuse in the new gTLD
market, which is especially important as we see illegal behavior now
taking place, including the prevalence of child abuse imagery cropping
up for the first time in new gTLDs in 2015.
To what extent is the ICANN community, including the Board,
committed to ICANN's role in mitigating DNS abuse through
contract enforcement?
Does the accountability proposal put forward sufficiently
ensure that ICANN will enforce its contracts with registries
and registrars in this regard?
Answer. I appreciate receiving the question about the important
issue of mitigating DNS abuse. The final report of the Cross Community
Working Group on Enhancing ICANN Accountability (``CCWG-
Accountability'') and the revised bylaws make it clear that the Public
Interest Commitments (``PICs'') and the registry contracts that contain
them are deemed within ICANN's mission. The multistakeholder community
as a whole is engaged in activity to mitigate DNS abuse and, in a June
letter from ICANN CEO Goran Marby to the Coalition for Online
Accountability, ICANN again commits to enforce the PICs contained in
the Registry Agreements. The Internet Governance Coalition appreciates
these statements from the ICANN CEO and believes that ICANN and the
multistakeholder community should continue to work collaboratively to
mitigate DNS abuse within the confines of ICANN's mission.
Question 2. The expansion of government authority in the ICANN
transition proposal is concerning, but it clearly falls short of what
governments like China, Russia, Iran, and France would like to achieve.
A joint statement by several foreign ministries was quoted at the
hearing saying that they were dissatisfied with the proposal and would
like to see more power for governments. This raises doubts about
assertions made by you and Mr. DelBianco that this proposal will blunt
efforts of these governments to pursue their goals in the ITU. Why
would these governments discontinue their efforts to expand government
authority over the Internet in the ITU or anywhere else?
Answer. Thank you for your question. There appears to be a
misunderstanding regarding my testimony at the hearing. As noted in my
response to Senator Thune's question above, post-transition, government
participation in ICANN policy development will be limited to a purely
advisory role within the Governmental Advisory Committee (``GAC''), and
the GAC itself is further confined by the new bylaws. However,
deliberations about the appropriate role for governments regarding
Internet governance are ongoing and shifting to other venues.
Governments that failed to gain influence over ICANN are turning
their attention back to the ITU. In June, the presidents of China and
Russia issued a joint statement supporting a multilateral global
Internet governance system and ``maintain[ing] [the] UN's important
role in setting up global Internet governance mechanisms.'' In October,
the ITU's World Telecommunication Standardization Assembly (``WTSA'')
will convene, with an agenda likely to include a wide range of
Internet-related issues. Governments like Russia, Saudi Arabia, China,
and others are trying to expand the ITU's activities at WTSA further
into Internet public policy-related issues. As a result, I do not
believe that governments will discontinue their efforts to expand
government authority over the Internet--rather, those efforts are
shifting to the ITU and other venues.
Promoting and protecting a thriving Internet will require continued
engagement in the global debate and ensuring that Internet governance
mechanisms remain open, transparent, and representative of all relevant
stakeholders. The transition will ensure that non-governmental
stakeholders, including U.S. industry, will have front row seats in
discussions about the Internet's future--making it easier, though no
less challenging, to keep it free and open for future generations.
______
Response to Written Questions Submitted by Hon. John Thune to
Richard Manning
Question 1. Mr. Manning, if the U.S. Government were to extend the
IANA contract for two more years, what would you need to see during
that time to become comfortable enough to support the transition plan?
Answer. The transition proposal should be postponed indefinitely.
One of the challenges with the proposed transition is that in
ending ICANN's status as a vendor of the U.S. Government, it also ends
First Amendment \1\ protections against capricious actions by ICANN or
its successor in Internet governance.
---------------------------------------------------------------------------
\1\ https://w2.eff.org/Infrastructure/DNS_control/ICANN_IANA_IAHC/
19980924_eff_new
_iana_pressrel.html
---------------------------------------------------------------------------
The pending proposal in front of ICANN's Board in Stream 2 that
would put protecting ``internationally recognized human rights'' \2\ in
the group's bylaws should be viewed with deep alarm. This change would
create an undefined, shifting standard that would put content control
as a core value of ICANN. While some dismiss the concerns about
delinking the First Amendment from ICANN activities through the
transition, there can be no reasonable argument that ICANN's
consideration of content control bylaws legislation so close to the
proposed transfer, demonstrates that the organization has a dangerous
blind spot toward the underlying freedoms upon which the free and open
Internet has thrived.
---------------------------------------------------------------------------
\2\ http://www.cruz.senate.gov/?p=press_release&id=2646
---------------------------------------------------------------------------
Another challenge is that proponents of the transition argue that
the multistakeholder community can better protect the Internet from a
United Nations' takeover than the U.S. Government. This is absurd on
its face. The private sector stakeholders are each subject to market
based coercion, and have a fiduciary responsibility to their
shareholders, not to the American public. The consequences of the
private, publicly held stakeholders' fiduciary responsibilities are
likely to be interpreted to mean that if making concessions on Internet
governance opens up potentially profitable markets it becomes these
companies' legal responsibility to trade concerns about Internet
governance for increased fiscal opportunities and profitability.
There are many other unanswered areas, such as, the ending of
pricing oversight for new and existing domain names at the ICANN and
registrar levels effectively allowing ICANN to impose increased
Internet fees/taxes with no oversight or control, and the overall
ramifications of ICANN losing its anti-trust exemption \3\ which the
NTIA has completely ignored according to recent Freedom of Information
Act releases,\4\ which make moving forward with the transition in the
near term both unwise and extremely risky.
---------------------------------------------------------------------------
\3\ http://www.wsj.com/articles/an-internet-giveaway-to-the-u-n-
1472421165
\4\ https://getliberty.org/wp-content/uploads/2016/08/NTIA-No-
Records-Response-Antitrust-Analysis-08.16.16.pdf
Question 2. Is there any scenario where you would support the U.S.
relinquishing its role with respect to the IANA functions?
Answer. It is difficult to foresee any such scenario.
The names and numbers that constitute the Internet domain name
system are no different than spectrum. We allot spectrum via the FCC,
and whatever that system's flaws, it prevents any one power from
consolidating control over the airwaves.
This government function, protecting the airwaves, protects the
First Amendment, and creates a zone where democracy can thrive.
Government oversight of the Internet domain name system is no
different.
Any alternative to the First Amendment protections afforded by
Federal Government oversight will inevitably fail leaving the Internet
less open and free than it is today.
The Internet is a technology that the whole world utilizes. Via
government oversight of the naming conventions, we have created spaces
for speech to occur that did not exist previously.
NTIA has done a good job with the IANA functions contract,
reflecting the Federal Government's duty as a light-handed steward of
Internet governance while resisting calls for content based
restrictions.
That remains true today. Americans for Limited Government urges you
to not forget your vital role as protectors of constitutional
safeguards, and creating an environment where freedom can thrive.
Speech without protection will be assaulted and lost.
Surrendering Internet governance to foreign powers or even a
corporate governance structure that is subject to foreign government
coercion is akin to surrendering a vital piece of the spectrum to
international regulators. It need not be housed in the United Nations
to be a dangerous power to be wielded against U.S. interests. By
allowing the transition to go through, Congress will be endorsing the
creation of an unregulated global monopoly over the domain name system
which is doomed to fail. This would be dangerous and foolish.
As stated earlier, ceding the IANA functions and the domain name
system to the international community sacrifices the First Amendment's
primacy over the government contracts. Nothing unconstitutional is
allowed to happen under a government contract, but you will lose that
guarantee when you lose the IANA functions. In fact, your Committee
will no longer be relevant on this matter should the transition occur
and will be impotent when inevitable questions and complaints arise.
No guarantee you receive from ICANN or anyone else will ever be as
good as the First Amendment and its regime of Federal court
intervention to ensure the NTIA contract with ICANN complies with the
safeguards afforded by the First Amendment.
______
Response to Written Questions Submitted by Hon. Marco Rubio to
Richard Manning
During the course of the CCWG's consideration of its accountability
reform proposal, the U.S. Chamber and other business interests
requested that ICANN's bylaws be amended to allow for greater insight
into how and to what extent ICANN interacts with governments and
government officials (outside the formal interaction with the GAC).
This request seems especially important in the wake of the revelations
concerning ICANN's most recent CEO, Fadi Chehade, and his interactions
with the Chinese government before his departure in March. The CCWG
delayed consideration of this important work during Work Stream 2.
Question 1. Do you agree that this type of transparency is
important?
Answer. Transparency is important, however the notion that the U.S.
Government should let the transition take place in order to get bylaws
changes that bring more transparency to the domain name system is
exactly backward. The U.S. Government contracting process is the only
means to bring the transparency you seek. Once you let the contract go,
you lose leverage to keep it away from other governments, and to
enforce any transparency laws that have been put in place.
If Congress wants ICANN bylaws changes to bring more transparency,
the most efficient means is for NTIA to never let the contract go and
threaten the contract every time something needs to be reined in. ICANN
is the contractor, and can be replaced. The domain name system and the
free and open Internet as we currently know it, cannot be replaced. To
maintain transparency and accountability, the U.S. Government should
continue the current contract.
Besides, the idea the domain name system as currently constituted
is non-governmental is a fiction. The U.S. Government has controlled
these functions since their inception, and the rest of the world opted
in. It's been under government contract the whole time, and as recent
as 2012, the Obama Administration was so frustrated with the vendor
that they threatened to open up competitive bidding for the
contract.\5\ If we want more transparency, then NTIA needs to get in
there and do its job, not collaborate with foreign interests who wish
to capture the IANA functions. You don't create transparency by ceding
power, you lose it.
---------------------------------------------------------------------------
\5\ https://www.fbo.gov/
index?s=opportunity&mode=form&tab=core&id=337abfa3fa508d260738
052baf46bdf9&_cview=1
---------------------------------------------------------------------------
If ICANN personnel working for the Chinese government is an
unacceptable state of affairs, then ICANN should be fired and a new
contractor found which is committed to maintaining a free and open
Internet and not appeasing those who wish to destroy this fundamental
principle.
Question 2. Should this important work have been punted to Work
Stream 2?
Answer. The answer is no, as it denies Congress and the next
Administration the ability to judge any transition based upon a full
set of facts. But to be clear, Americans for Limited Government remains
opposed to the transition regardless of promises, due to the permanent
loss of First Amendment protections that are only afforded if the
current relationship is maintained. The only thing that should be
punted is the transition proposal itself. The work in Stream 2 is
irrelevant to maintaining U.S. Government control of the IANA
functions, which is the true task at hand. The only transparency that
matters to the domain name system is U.S. Government oversight. You
either keep it, or we'll lose it forever.
Question 3. What assurances are there that greater transparency
such as this will be effectuated if the transition was to occur before
the work is done?
Answer. There are no assurances you should accept. Delaying is a
perfectly viable alternative to transitioning. You are contemplating
sacrificing oversight of the IANA functions to an unaccountable global
monopoly over the domain name industry. That is a bad idea. Instead,
you should be maintaining oversight, not giving it up.
Right now the Internet domain name system has transparency via the
NTIA contracting process, and our elected officials and Federal courts
enforcing constitutional protections.
Right now, you have at least a regulated monopoly that can be
reined in if need be. Once you let that go, you'll never get it back--
and Congress will have no power to address the inevitable concerns that
will occur in the future, and will rue the day the free and open
Internet was unwittingly handed to foreign powers. The transition is
not in the U.S. interests, nor is it in the interests of maintaining a
free and open Internet. Given that, Congress should do everything in
its power to stop the transition, if even for an additional two-year
period so the next Administration can undertake a thorough review of
this critical decision and if it decides to proceed, request an up-or-
down vote in Congress to complete the transition.
Question 4. What other issue have been punted to Work Stream 2 that
you see potential problem with?
Answer. The concern about whether ICANN will be locked in as a U.S.
based non-profit corporation is one. The Committee is well aware of
this concern so I won't address it further in this document.
Another obvious concern is the decision on whether to change
ICANN's by-laws to include, ``internationally recognized human
rights.'' The fact that the value-neutral ICANN would even consider
imposing some kind of human rights component to its by-laws
demonstrates a willingness to create a future censorship regime based
upon international standards. The Senator is reminded that the U.N.
Human Rights Council is composed of abusers like Cuba, Venezuela and
China and have recently condemned Israel \6\ as the leading human
rights abuser in the world, and in a recent report urged the
federalization of all of U.S. law enforcement agencies \7\ and the
sublimation of U.S. law to international law.
---------------------------------------------------------------------------
\6\ http://www.foxnews.com/opinion/2016/03/29/can-t-make-it-up-un-
names-democratic-israel-as-world-s-top-human-rights-violator.html
\7\ http://freeassembly.net/news/usa-statement/
---------------------------------------------------------------------------
The very fact that ICANN would consider making something as
constantly changing and politically motivated as ``internationally
recognized human rights'' part of their underlying mission even as
Congress faces the decision on whether they can be trusted with full
stewardship over the Internet's IANA is stunning. This consideration
demonstrates that ICANN could in the near future, impose Internet
content controls under the guise of `human rights' rejecting the First
Amendment protections that currently exist through their existing
contract with the U.S. Government. This Stream Two consideration raises
significant enough doubts about ICANN's judgment, ability and
willingness to perform its functions as a vendor to the U.S.
Government, that serious consideration should be given as to whether
they should continue to manage the contract on behalf of the U.S.
Government after a two-year interim extension is put into place by
Congress.
Congress can be assured that given the lucrative \8\ functions
ICANN currently performs there would be no shortage of competitors to
replace them as the vendor should the next Administration find it
advisable in 2018.
---------------------------------------------------------------------------
\8\ https://www.icann.org/en/system/files/files/annual-report-2015-
en.pdf
---------------------------------------------------------------------------
But let's be clear, as it pertains specifically to Stream 2
outcomes, even if Congress were to be satisfied, any decision made
related to Work Stream 2 can be rescinded or revised at a later date by
the current or a future ICANN Board. This impermanence in the governing
structure and the instability it represents to future governance
issues, makes any transition a risky gamble, because once the proposed
transition has occurred, Congress will have no power to stop changes
antithetical to a free and open Internet. And as is intended through
the transition, the U.S. Government's oversight role will have been
reduced to one of 160+ governments, effectively rendering the U.S.
powerless to project a free and open Internet from an onslaught from a
vast majority of the world's governments which fear that very concept.
Americans for Limited Government strongly urges that Congress act
to compel the Obama Administration to renew the existing vendor
contract with ICANN, allowing the next Administration to recommend to
Congress whether the IANA functions should be turned over to ICANN's
control, or whether a different course of action is needed to protect a
free and open Internet into the future.
______
Response to Written Question Submitted by Hon. John Thune to
Brett D. Schaefer
Question. Regarding a proposed two-year delay to the transition of
the IANA functions, skeptics may always have a reason to call for just
a little bit more time, turning a short delay into a de facto blocking
of the transition indefinitely. Can you offer some objective, concrete
benchmarks or criteria that would demonstrate that the new structure
has been sufficiently proven effective?
Answer. There is no specific benchmark that would signal that ICANN
is ready for the transition. The value of an extension is that it would
allow implementation of the new ICANN bylaws and provide the ICANN
community time to explore the new governance structure in practice,
rather than in theoretical stress tests. It will also provide time for
all of the Work Stream 2 reforms, which are not expected to be fully
resolved and implemented until the summer of 2017, to be completed and
implemented. Important issues yet to be settled include the nature and
extent of ICANN's commitment to human rights, making ICANN more
transparent to the community, adopting measures to make the staff more
accountable, and the issue of ICANN's jurisdiction of incorporation,
which remains an issue of dispute.
NTIA opposes a test period because they see the community powers 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.''
I disagree. While there is no guarantee of a significant failure--
and I hope one does not occur--there will be opportunities for the
multistakeholder 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. The extension would maintain
the option of reasserting U.S. oversight if the new community powers
prove inadequate or ICANN resists promised accountability reforms
sought by the ICANN community.
At the latest, I see U.S. oversight ending in 2019. The current
contract cannot be extended beyond 2019 and continued U.S. oversight
would require a new contract, which ICANN must enter into willingly. If
ICANN fulfills its promises to the community on accountability and
performs its responsibilities well, believe the multistakeholder
community and most of the world's countries, including the U.S., will
support ICANN continuing its role absent U.S. oversight.
______
Response to Written Questions Submitted by Hon. Marco Rubio to
Brett D. Schaefer
During the course of the CCWG's consideration of its accountability
reform proposal, the U.S. Chamber and other business interests
requested that ICANN's bylaws be amended to allow for greater insight
into how and to what extent ICANN interacts with governments and
government officials (outside the formal interaction with the GAC).
This request seems especially important in the wake of the revelations
concerning ICANN's most recent CEO, Fadi Chehade, and his interactions
with the Chinese government before his departure in March. The CCWG
delayed consideration of this important work during Work Stream 2.
Question 1. Do you agree that this type of transparency is
important?
Answer. Yes, it is critically important that an organization with
the authority and resources that ICANN possesses be transparent about
its interactions with all governments. ICANN discloses the information
required by U.S. law, but this disclosure is not comprehensive. For
instance, ICANN refuses to provide details to the ICANN community about
its contracts with vendors like Albright Stonebridge Group LLC, Wiley
Rein LLP, Rice Hadley Gates LLC and other entities hired to provide
``education/engagement'' services because of confidentiality
obligations in the contracts. U.S. law would also not cover
interactions between ICANN and other governments. If the ICANN
community is to be in a position to hold ICANN accountable post-
transition, it needs to be fully informed of its activities and
interests.
Question 2. Should this important work have been punted to Work
Stream 2?
Answer. Early on, the ICANN community identified a number of
serious reforms that it deemed critical to make ICANN accountable.
However, it was clear that not all of the reforms could be fully
developed or implemented under the original projected deadline for the
transition of September 2015. Therefore, the ICANN cross community
working group on accountability divided the reforms into ``Work Stream
1'' reforms that had to be in place prior to the transition and ``Work
Stream 2'' reforms that could be implemented after the transition. The
difference between the two was not their importance, but whether or not
they directly involved replacing the U.S. role in the IANA process. It
is very unfortunate that an artificial, political deadline drove this
division in ICANN reforms. In my opinion, the U.S. should have required
all reforms to be implemented prior to the transition.
Question 3. What assurances are there that greater transparency
such as this will be effectuated if the transition was to occur before
the work is done?
Answer. There is a commitment to implementing Work Stream 2 reforms
written into the bylaws, but it is a broad commitment that could result
in significant reforms or cosmetic reforms. A major reason why the
ICANN Board has been willing to accept Work Stream 1 accountability
measures in the current proposal is that the U.S. Government has said
that the transition is dependent on their adoption. Even then, the
Board has been recalcitrant at times and forced the community to
retreat from reforms that it sought. After the transition, the ICANN
Board will likely be less accommodating to community demands for
greater accountability and transparency. We could see a similar dynamic
post-transition with the community backing down in the face of Board
opposition and settling for minimal reforms. Adding to this concern is
the fact that ICANN has significantly curtailed the budget for
independent legal advice for Work Stream 2 versus Work Stream 1. In
short, there is reason to doubt that the Work Stream 2 reforms will be
implemented to the level desired by the much of the ICANN community as
expressed during the past two years. An extension of the contract would
place the ICANN community in a much stronger position to demand full
implementation of Work Stream 2 reforms.
Question 4. What other issue have been punted to Work Stream 2 that
you see potential problem with?
Answer. Important issues yet to be settled include the nature and
extent of ICANN's commitment to human rights and making ICANN more
transparent to the community, which I discussed in my testimony.
More recent events have illustrated the importance of stronger
accountability for the ICANN Board and staff. In a July 29 declaration,
an Independent Review Panel (an arbitral panel for dispute resolution)
condemned ICANN for its actions involving applications for domains by a
company called Dot Registry. The panel found that ICANN legal staff
inappropriately intervened in the report of an independent evaluator.
Then it found that the Board Governance Committee, or BGC (the body
responsible for responding to requests for reconsideration of board
decisions and administering ICANN's conflict of interest policy),
repeatedly failed to do its job. Its decisions were described as
``cavalier'' and ``simply not credible.''
According to the panel, ``ICANN failed to apply the proper
standards in the reconsiderations at issues, and that the actions and
inactions of the board were inconsistent with ICANN's Articles of
Incorporation and Bylaws.'' Specifically, the Board ``failed to
exercise due diligence and care,'' ``failed to fulfill its transparency
obligations,'' and the evidence did ``not support a determination that
the board (acting through the BGC) exercised independent judgement in
reaching the reconsideration decisions.'' These are serious governance
flaws that need to be addressed, but have been largely deferred to Work
Stream 2.
Another issue in Work Stream 2 that could have serious implications
is the issue of ICANN's jurisdiction of incorporation, which remains an
issue of dispute. ICANN's bylaws state that ``the principal office for
the transaction of the business of ICANN shall be in the County of Los
Angeles, State of California, United States of America.'' However,
ICANN's principal office and place of incorporation can be changed and
some participants in the Work Stream 2 discussions have been very vocal
in their desire to move ICANN out of the U.S., which could have far-
reaching implications.
Foreign governments have already pushed for regulatory control of
the Internet by the United Nations or a governmental regime.
Question 5. How much will the transition be able to reverse the
thinking of governments that are already in favor of this governance?
Answer. Not at all. Governments like Russia, China, and Iran will
always prefer more government control over the Internet. That is
easiest to achieve through U.N. or International Telecommunication
Union (ITU) governance of the Internet and they will continue to press
for that outcome. That was never going to change regardless of the
transition. How many governments are in this group? At the 2012 WCIT
conference, 89 countries voted in favor of granting the ITU a role in
Internet governance versus 55 countries that voted against the
proposal.
The NTIA has argued that the transition announcement has eroded
this support. In July, Assistant Secretary Strickling stated that
``almost 30 of [the 89 countries supporting U.N. governance of the
Internet in 2012] have now demonstrated their support for
multistakeholder governance of the domain name system by joining in the
Governmental Advisory Committee's [GAC's] consensus position to move
the transition proposal forward.'' This means that roughly 60 countries
continue to oppose the multistakeholder model.
But more fundamentally, support for the transition proposal in the
GAC does not ipso facto mean that those governments would not prefer
U.N. governance of the Internet. It could mean that they support ending
the U.S. contractual relationship with ICANN and see it as an avenue
toward asserting ITU governance of the Internet. In other words, the
long-term impact of the transition on government positions vis-a-vis
U.N. governance of the Internet is unknown.
Question 6. Will a delay in the transition, to ensure
accountability, push these foreign governments to abandon the mutli-
stakeholder model altogether or will it do more to prevent these
governments from abusing it?
Answer. In my opinion, it is unlikely that countries supportive of
the multistakeholder model would abandon it. For years, the U.S. had
worked with like-minded countries to resist efforts to have the
International Telecommunication Union (ITU) assume a role in Internet
governance. In the 2012 WCIT conference, 89 countries voted in support
of a proposal to have the ITU assume some authority over the Internet.
NTIA believes that the transition announcement convinced some 30
countries to reconsider their position. However, 54 countries voted
with the U.S. at the WCIT to oppose the proposal to have the ITU assume
some authority over the Internet. As far as I know, there has been no
significant shift in the position of countries that support of the
multistakeholder model since the WCIT. If the U.S. said that it
remained committed to the transition, but wanted more time to fully vet
the proposal, I believe that these countries would remain supportive of
the multistakeholder model.
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