Is the U.S. turning its back on innovation in Internet governance?

With its Further Notice of Inquiry (FNOI) on the Internet Assigned Numbers Authority (IANA) contract, the U.S. Commerce Department has signaled its increasing dissatisfaction with ICANN's nongovernmental global governance model. The agency (NTIA) has gone out of its way to rebuff the idea of a transition to a fully denationalized regime. “NTIA reiterates that it is not in discussions with ICANN to transition the IANA functions nor does the agency intend to undertake such discussions.” OK, that settles that. The idea of globalizing this aspect of Internet governance through a private sector nonprofit that governs by contract was embodied in the 1998 White Paper that led to the creation of ICANN. That idea is still promoted by ICANN itself, the Internet Society and luminaries such as Vint Cerf. But the Commerce Department is having none of it.  

The explanation for this seems to be conservatism. Not the Christian-evangelist nationalist “conservatism” of the Republican Party, but conservatism in the old-fashioned, generic sense: inertia – an unwillingness to spend the extra energy it takes to do things in new and unfamiliar ways. The Commerce Department, and many others in Washington, are palpably weary of ICANN. They seem to have finally realized, 12 years on, that delegating governance to an independent, international multi-stakeholder organization means that governments don't get to call the shots they way they do normally. They have discovered that a bottom up MS process is independent not just of “other” governments like China and Russia, but also of European and American governments, and that it undermines well-established special-interest lobbying circuits. They have discovered that interacting with other stakeholder groups as peers in a bottom up process is really, really hard work, and doesn't mesh well with normal bureaucratic routines. They lack the vision to conclude that maybe it is governments, not the global governance process, that needs to change.

This weariness with the demands of globalized Internet governance comes out clearly in the FNOI statement here:  “there is a need to address how all stakeholders, including governments collectively, can operate within the paradigm of a multi-stakeholder environment and be satisfied that their interests are being adequately addressed. Resolving this issue is critical to a strong multi-stakeholder model and to ensure the long-term political sustainability of [ICANN].” Thus, the Commerce Department joins the European Union in the false assumption that multi-stakeholder governance means that governments get exactly what they want, otherwise the model is broken.

Consistent with this return to traditional governmentalism, NTIA has summarily rejected calls to unbundle the IANA functions. NTIA wants the three core functions (DNS, IP addresses and protocol and port numbers) to be bundled and performed by a single entity. It wants ICANN to continue to operate the .arpa top level domain. It will, however, consider separating management of .int TLD, and will conduct a consultation on that next year. Of course, the .int domain, with a few dozen registrations, has no significance for global Internet governance, so who cares?

The unstated reason for NTIA's centralization of the coordination function is that it wants to keep things under its thumb. It is noteworthy that VeriSign has also proven to be a strong, but secretive, supporter of keeping the functions centralized in one organization under contract to the U.S. government. VeriSign has funded at least two entities who commented in the IANA Notice; both came out strongly against any unbundling. These comments were suspicious because they came from people with no real knowledge of the implications of functional separation and who have never commented on that issue before. One of the comments referenced here revealed utter ignorance of the difference between IP address and DNS coordination. When people who have no idea what unbundling the IANA functions actually means are writing 3 pages of commentary on why it shouldn't be done, you know that something's up in Washington. VeriSign, like the trademark interests, has always preferred keeping DNS governance on a short leash to Washington, where they have a powerful lobbying presence.

Consistent with this “keep it under national governmental control” meme, NTIA refuses to make the IANA contract longer term. It thus dismisses the concerns raised by Vint Cerf's comments for Google. Cerf argued, correctly in our view, that the short duration of the contract raises uncertainty and instability in Internet governance and needlessly brings extraneous politics into the picture. As we are already seeing, the USG is now using the IANA contract renewal as a stick with which to beat ICANN on policy issues such as the new TLD program. Keeping ICANN on a short, governmental leash subjects it to domestic US politics. NTIA says that it does not consider IANA contract to be short-term; most government contracts are for one year, it notes. But this claim is disingenuous. This is not a normal “government contract.” Most USG contracts are for simple operating functions that are outsourced to private entities for efficiency purposes. IANA is not supposed to be a US governmental function; at best, the US is but a neutral steward of a function that no other government or multilateral agency can control without setting off a nasty power struggle.

As noted in our previous blog, the NTIA draft requires that all staff dedicated to executing the IANA functions remain separate and removed from any policy development that occurs related to the performance of the IANA functions. This is one of the good things in the FNOI. But it obviously contradicts most of the other, more centralizing decisions NTIA made. If it is good to separate the IANA functions from policy development why not do this more thoroughly and separate IANA from ICANN altogether?

And of course, whatever good things NTIA is trying to achieve through this separation are completely undone by its bizarre call for new gTLD delegation requests to demonstrate how the string proposed reflects consensus among relevant stakeholders and is supportive of the “global public interest.” That misguided proposal would turn the IANA contract into a reborn Joint Projects Agreement where the US government tries to dictate policy to the people involved in ICANN. It inserts yet another layer of discretion and unaccountable policy making into what is already a complex process. I wonder how many web sites that are valuable and thriving today would exist if they had required advance justification of their “public interest” value by a centralized bureaucracy. I wonder what happened to the idea of “permissionless innovation” at the Commerce Department.

Although the deadline for response is not clear yet, we encourage the community to respond to the FNOI. We believe that the top priority is damage control: NTIA must be shown how destructive is its attempt to override the ICANN Board decisions with a new IANA process that requires documentation of consensus and “global public interest.” NTIA should be warned strongly against trying to make the IANA contract into a policy-dictating document. We also believe that the community should keep pushing for distributing the IANA functions, and do a better job of documenting the reasons for it. We should also hammer away at the need for a more stable, less political approach to the IANA contract renewals.  

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