Is there such a thing as a Freudian typo? If so, the new IANA contract certainly contains one. On page 9, it requires the Contractor to promptly notify the NTIA of “any outrages.”
They meant outages, of course. But we like the proposed language much, much better. IGP has been almost solely responsible for ICANN's outrage notification function for the past six years, and we would be happy to share that duty with others.
All kidding aside, the new IANA contract solicitation, which was posted by the U.S. Commerce Department November 10, represents a milestone in ICANN's relationship to the U.S. government. Rather than loosening the ties that bind Internet names and numbers to the authority of one national state, the Commerce Department has strengthened them considerably. Despite a European Commission news release trumpeting changes that it said it had demanded, the EC – and all other governments – have been sidelined. The new approach to the IANA contract is the final nail in the coffin of any attempt to globalize or de-nationalize oversight authority over ICANN. One can praise the NTIA for its attempt to make the contract a more open bidding system, but the more salient fact is that it has institutionalized a bidding system that is permanently confined to U.S. companies and subject to detailed regulation and oversight by the U.S. government.
A successful bidder for the IANA contract must be a wholly U.S. owned and operated firm or university, incorporated in the U.S., and organized under the laws of one of the 50 U.S. states. All primary operations and systems must remain in the U.S. Any operations and activities can be inspected by U.S. government officials at any time. The new contract also engages in more, not less, exercise of regulatory control over the way the functions are performed. NTIA must review and approve virtually everything IANA does.
This means that we can look forward to U.S. interference in ICANN every three years for an indefinite period.
Aside from that (Mrs. Lincoln) there are a few positive things in the IANA contract. One is that the “Internet user community” is included as an “interested and affected party” in section C.1.3. This means that the Contractor (which we presume will be ICANN again) must develop a “close and constructive working relationship” with it, and that Internet users are given standing in regards to commenting and consulting on certain things IANA/ICANN does.
Another, minor positive thing is section C.2.5., which strictly separates IANA staff from influencing or participating in policy development. IANA staff is confined to an operational role. (Any chance we can get that same standard applied to the GNSO staff?) Also, ICANN must develop, for each IANA function, “performance standards” and a “process for documenting the source of the policies and procedures” and how it will apply them.
The statement of work requires IANA, finally, to develop a fully automated root zone management system within 9 months and an online database of change requests and actions. That is a very important and good development. But don't be too impressed with the NTIA here. A more independent IANA would have developed an automated root zone entry process years ago. It was the NTIA itself which prevented it from happening earlier. The US Commerce Department wanted to make sure that any automation plan did not undermine its exclusive control of the DNS root.
The IANA contract contains some retroactive scolding about conflict of interest. Section C.6.1 requires ICANN to develop a conflict of interest policy and to appoint a new “Officer” devoted exclusively to managing conflict of interest policies and supervision. While such a policy is a good thing, the more significant development here is that the NTIA is attempting to micro-manage ICANN's conduct through the IANA contract. If this becomes a trend, it could get dangerous and destructive.
Which leads to one of the most important issues that made the release of this document interesting. We criticized an earlier draft of the Statement of Work (SOW) that seemed to imply that any new top level domain (TLD) delegation had to demonstrate that it had “consensus support” and that it was in “the global public interest.” Because these measures were supported and pushed by interest groups that wanted to stop or delay the addition of any new domains, we were rightfully concerned that such measures would make the IANA into an additional layer of policy making and politicking — a place where people who did not get what they wanted from the ICANN's policy development process could go to circumvent it from the top. Fortunately, the NTIA seems to have listened to reason…somewhat.
The new SOW says that in connection with a new gTLD request, ICANN must demonstrate that it followed its policy framework, including a showing of how the process a) provided an opportunity for input from relevant stakeholders and b) was supportive of the global public interest. The good news here is that the crazy language about a new delegation needing “consensus support” is gone. Furthermore, the language has been clarified to specify that it is the policy development and implementation process that must be open to input and “supportive of the global public interest,” not the gTLD application itself. Thus, there is no need to prove that a domain name cannot and should not exist unless you can get a global political process to deem it “in the public interest.” This is a marked improvement over the language in the Further Notice of Inquiry.
Nevertheless, the insertion of a public interest standard into ICANN's technical coordination role is troublesome. The problems with this innocuous-sounding standard are manifold. One is that there is no globally applicable law and precedent to define what “the global public interest” is. That kind of a vacuum paves the way for arbitrary exercises of power. All public policy debates are in essence debates over what is in the public interest. Everyone on the planet believes, or can pretend to believe, that policies that conform to their ideologies or which serve their interests are in line with a general public interest. Therefore public interest is an intrinsically variable and unpredictable standard, especially given the lack of any criteria, standards or law telling us what it means in this context. While we should all strive for policies that are in fact in the global public interest, you cannot solve disagreements about policy, or policy processes, by invoking that term as the deciding factor. Another problem is that the so-called public interest determination will be made unilaterally by mid-level bureaucrats in the U.S. Commerce Department. Sorry to be the one to break the news, but the NTIA has no mandate from all the world's peoples to serve as their delegated arbiter of the global public interest. Even at the national level, it is a bit short of democratic legitimacy and accountability.
So IANA, and thus ICANN itself, will continue to be a closely regulated creature of the United States government, and every three years, the U.S. Congress, the Commerce Department and the business interests who cluster around them will have an incentive to tweak the contract to use it as leverage to get policy outcomes they want out of ICANN. This is too old and familiar to be an outrage, but it is not in the global public's interest.
