Laws, Sausages and the IANA transition (part 1)

Political people like to compare the making of laws to the making of sausages. In the IANA transition, we can now claim to have produced a Frankfurter.

The most difficult part of the IANA transition plan – changes regarding the management of the domain name system root – took significant steps forward November 19 and 20. A face to face meeting of some of the members and participants of the Cross Community Working Group created to develop the names plan occurred in Frankfurt, Germany. The group came out with the skeleton of a transition plan, which is more or less captured by this IANA Transition Flow Chart. But some key details are still fuzzy and there is still debate about the nature of an important accountability measure.

In the Frankfurter model, four new entities are proposed:

  1. A new but very lightweight IANA Contracting Entity;
  2. An IANA Customer Standing Committee, responsible for ongoing review and assessments of IANA’s operations and transactions;
  3. A multi-stakeholder Periodic Review Team that would convene periodically to assess IANA’s performance and make recommendations to the contracting authority.
  4. Finally, there would be an Independent Appeals Panel that could resolve disputes about whether IANA’s actions are consistent with agreed policy.

There are reasons for the complex structure. The group made the contracting authority little more than a shell so as to avoid creating a major new organization that might grow out of control. The group tried to resolve the tension between providing for broad, multistakeholder influence over IANA’s fate by splitting away the oversight role of the direct customers of IANA (top level domain registries) from the oversight role of the broader community – although this plan definitely empowers the multistakeholder Periodic Review Team over the registry-oriented Customer Standing Committee. The independent appeals panel, which would be binding, is a recognition of the need to ensure that IANA merely implements policy and does not warp it or ignore it or make it.

The controversy revolves around the role of the Periodic Review Team. The Review Team is the linchpin of this plan, because it would assess the IANA’s performance and recommend to the Contracting Entity any changes in the contract or changes in who the contract was awarded to. In other words, the PRT is the real basis for providing accountability in this plan.

Some of the Frankfurters wanted a weak, advisory PRT, similar to the Accountability and Transparency Review Team, which simply issues reports with recommendations and urges ICANN to adopt them. These people even wanted to remove any reference to a request for proposals (RFP) from the plan, basically assuming that ICANN would always be the IANA and confining the accountability measures to naming and shaming. Only in exceptional circumstances, and completely at the PRT’s discretion, could the PRT advise the Contracting Entity to move the contract to another provider.

The strong accountability advocates, on the other hand, wanted the PRT to be required to renew the IANA contract on a fixed cycle (e.g., every 3 or 5 years). They wanted (i) a limited term for the contract; (ii) an open application process; and (iii) no presumption of renewal. The strong accountability advocates noted that the CWG has already adopted “separability” as a key principle guiding its plan.

Seperability: any proposal must ensure the ability: i) To separate the IANA functions from the current operator if warranted and in line with agreed processes; and ii) To convene a process for selecting a new operator. Seperability should persist through any future transfer of the IANA functions.

Strong accountability advocates viewed a regularly scheduled contract renewal as a far more stable and less politicized method of ensuring seperability than a discretionary decision by a committee. If the committee has the power to terminate the contract but is not required to renew it on a pre-ordained schedule, then the process would be heavily biased toward the incumbent. Changing the contractor would require a major political upheaval, and the formation of the review team will become politicized as those attempting to preserve the status quo, including ICANN itself, will push hard to get people favorable to them on the review team. Weak accountability advocates, on the other hand, emphasize the costs associated with going through the tendering process. As of now, the strong accountability advocates seem to be winning the arguments.

There are also many other details to be worked out, including the legal status of the contracting entity, the composition of the PRT, and the legal status of the appeals authority.

At the end of the meeting the CWG chairs issued this statement, noting that they are still shooting for the release of a draft proposal for public comment by December 1st.

NEXT: An analysis of the Kelly Bill (An IANA transition plan from the US Congress)