ICANN: Anything that doesn’t give IANA to me is out of scope

When the U.S. Commerce Department announced that it would end its control of the domain name system root, it called upon ICANN to “convene the multistakeholder process to develop the transition plan.” Many people worried about ICANN’s ability to run a fair process. As an organization with a huge stake in the outcome, there were fears that it might try to bias the proceedings. ICANN has a very strong interest in getting rid of external oversight and other dependencies on other organizations.

Those fears were quickly realized. On 8 April, after passively watching a few weeks of discussion on its IANA transition list, ICANN released a draft of the principles and mechanisms, and process for developing a transition of the IANA Functions. This proposal included a document describing what is in scope and what is not in the scope of the transition. The scoping document, as it became known, contained a shocker:

IANA functions operator. NTIA exercises no operational role in the performance of the IANA functions. Therefore, ICANN’s role as the operator of the IANA functions is not the focus of the transition.

By defining the scope of the process in this way, ICANN’s management was making a bold attempt to require the process to give it control of all of the IANA functions. In particular, it would pre-empt any discussion of structural separation. The requirement was not based on the community discussions or opinion; it came out of the blue. No significant group of participants had argued for such a restriction; on the contrary several participants had submitted proposals to NETmundial and the IANA transition list calling for various ways of dividing up the IANA functions among different organizations.

If the transition process cannot even discuss whether ICANN or some other entity should operate the IANA functions, then virtually all of the extant proposals for the transition would be ruled off limits. The transition discussions would be limited to one – and only one – outcome with respect to who controls the IANA functions. It would have to be ICANN, because ICANN controls it now.

Reaction to the scoping document was immediate, and overwhelmingly negative. Legal scholar and ICANN expert Michael Froomkin commented,

If ICANN wants to have the community trust it more, it will have to learn to stop pulling stunts like this. What is it about ICANN’s DNA that makes it do this over and over again? Whatever it is, that behavior reinforces the need to have structural separation in order not to put all our eggs in one basket.

Intellectual property lawyer Greg Shatan said this:

The scoping document must be viewed as solely a creation and position piece by ICANN, not a result of the multistakeholder process.  … Being a facilitator and a party is an inherent conflict of interest.  Even attempting to appear like a “neutral broker” would have helped ICANN mitigate that conflict of interest.  This goes in the other direction.

ICANN’s attempt to find justification for its limitation have no basis in the Commerce Department’s announcement. The NTIA itself described the transition in the following way:

National Telecommunications and Information Administration (NTIA) today announces its intent to transition key Internet domain name functions to the global multistakeholder community.” It says transition to the global multistakeholder community, not necessarily to ICANN.

The NTIA also said that any successful 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 services; and,
  • Maintain the openness of the Internet.”

Nothing in those principles forecloses a plan that would choose someone other than ICANN as the “operator of the IANA functions.” Yet ICANN’s President Fadi Chehade is still clinging to his gambit. He and other ICANN staff are claiming that the scoping document was approved by the Department of Commerce. This claim has never been verified by the Commerce Department.

Today, the European Commission’s Vice President Neelie Kroes may have put the final nail in the coffin of the ICANN gambit. A statement on the upcoming NETMundial meeting contained a section strongly challenging ICANN’s scoping document. The Commission said (emphasis in original):

With due consideration to the criteria which the US Government has presented in its announcement of 14 March 2014, there should be no artificial limitation in the scope of the discussion. For example, a consideration of various organisational options, as well as of the opportunity and the most appropriate ways to separate policy, operational and oversight activities should not be “off-limits”, if we want the debate on the future of IANA to be seen as truly legitimate at the global level.

Now that the scoping document has been broadly rejected by almost everyone outside the I* organizations, ICANN must respond appropriately. It needs to eliminate that paragraph in the scoping document, and make other adjustments permitting a wider range of discussions. Here at IGP we have published a shared document that revises the scoping document in an appropriate way.

The general public can also comment on the scoping document by sending a message to this email address: ianatransition@icann.org. Unfortunately, this has proven to be a lousy public comment forum, because formal comments are inserted willy-nilly into a rambling discussion list and not compiled separately.

If ICANN remains stubborn about its scoping gambit, it could threaten the legitimacy as well as the practical success of the whole transition. There is a legitimate debate to be had about whether the transition is best accomplished by keeping IANA in ICANN or moving it somewhere else. We need to have that discussion. The Commerce Department could quickly end this diversion from the real work at hand by making it clear that it does not approve of ICANN’s attempt to require the community to “give IANA to me.”