US Congress weighs in on IANA transition

Washington D.C. is abuzz with activity concerning NTIA’s IANA transition announcement. Last week saw a hearing with the House Energy & Commerce Committee and a discussion at the Hudson Institute, this week brings another hearing with the Judiciary Committee as well as a NetCaucus briefing. So far, three bills have been proposed.  The first is H.R. 4342 Domain Openness Through Continued Oversight Matters  (DOTCOM) Act of 2014, introduced by Rep. Shimkus (R-IL). The second is H.R. 4367 Internet Stewardship Act of 2014, introduced by Rep. Kelly (R-PA). The third, H.R. 4398 Global Internet Freedom Act of 2014, was introduced by Rep. Duffy (R-WI). All the bills explicitly prohibit the National Telecommunications and Information Administration from relinquishing responsibility over the domain name system, specifically, responsibility with respect to the authoritative root zone file, the Internet Assigned Numbers Authority functions, and related root zone management functions. Where they vary is in under what conditions, if any, such relinquishment might occur.

Duffy’s bill is the simplest. It prohibits the NTIA from relinquishing its role, full stop. Kelly’s power grab bill attempts to give the U.S. Congress a formal approval role, denying any transition

unless such relinquishment is permitted by a statute enacted after the date of the enactment of this Act.

Tactically, the first two make the Shimkus bill look reasonable by comparison. The DOTCOM Act requires that no transition take place,

until the Comptroller General of the United States submits to Congress a report on the role of the NTIA with respect to such system.

This includes providing background information about multistakeholder governance and NTIA’s current role, and requiring the General Accountability Office to discuss the process and criteria used by NTIA and other agencies for evaluating proposals, as well as analyze and determine consequences of any transition proposals submitted to the NTIA, including any national security concerns.The DOTCOM Act has moved into markup and is expected to be voted on soon.

All the bills have been referred to the House Energy & Commerce Committee. In a hearing last week, conservative Committee members asserted that the transition presented “threats to the openness and freedom of the Internet,” conveniently ignoring the many ways in which the USG itself often poses a threat to Internet freedom. Have we forgotten the Communications Decency Act of 1996, or the recent SOPA/PIPA laws? The role of Rep. Marsha Blackburn of  Tennessee revealed the confusion and inconsistency that underlies the conservative critique. Rep. Blackburn, a staunch opponent of FCC network neutrality rulings, is convinced that neutrality regulations put “government” in a position to censor or control the Internet. Yet there was Rep. Blackburn supporting the view that the U.S. government’s role in controlling the DNS root zone is a bulwark of freedom.

Testifying before the Committee, Department of Commerce Asst. Sec. Larry Strickling, ICANN CEO Fadi Chehadé, former Ambassador David Gross (representing the Internet Governance Coalition) and others sought to calm nerves. The one exception was Steve DelBianco of NetChoice who played to the Committee’s fears about inter-governmental takeover of a suddenly free ICANN controlling the DNS root zone. Fortunately, the credibility of such a threat was challenged by Strickling and academic observers.

Analysis and prognosis

By asserting Congress’s role as an arbiter of the transition, these bills represent delaying tactics, at best, and an all out effort to kill the transition at worst.  Either way, the bills reflect serious misunderstandings about the transition and the role of government(s) in the transition. A few observations:

• These bills actually may be creating, not reducing, the political risks associated with conflict over ICANN and the DNS root. Nothing mobilizes support among the world’s governments for a stronger ITU role in Internet governance or a more nationalistic approach than the sight of the U.S. Congress beating its chest about American exceptionalism and its unilateral right to supervise global Internet infrastructure. A 2011 study of the Domain Name System initiated by Dept. of Homeland Security (full disclosure: IGP was consulted as unpaid Subject Matter Experts) identified a risk that “nation-states may want to capitalize on the perceived control of the United States over the Internet by offering a competing authoritative root (resulting in Internet fragmentation) to undermine the perceived hegemony of the United States.” Asserting a role for Congress reinforces that perception. NTIA’s agreement to transition the USG away from its unilateral oversight role is precisely the kind of measure that will help alleviate this risk.
• Any attempt to establish Congressional oversight contravenes the 1998 White Paper that set the policy framework for ICANN. The objective of moving governance of the domain name system away from government(s) and into the private sector is the linchpin of US policy and the entire rationale for having  ICANN in the first place. While the completion of it has been delayed 15 years, that basic objective has never materially changed over Republican and Democrat administrations. Reps. Kelly, Shimkus and Duffy’s bills represent outlier views.
• The U.S. did not establish its authority over the DNS root in order to protect Internet freedom. It did so because it was worried about the .com monopoly, and because it was worried about ICANN’s accountability and stability. The Commerce Department asserted control over the root in 1998 in order to make sure that the private company running .com would not be in charge of which new top level domains would enter the root. It held on to control after 2000 not because of Internet freedom concerns but because ICANN was shaky, unstable and as yet untrusted. At any rate, it’s easy to see how the ability of a government to authorize, control or manipulate changes to the DNS root zone could reduce Internet freedom. It’s hard to see how holding on to that ability can defend, expand, protect or promote Internet freedom. No matter which individual government or group of governments’ hands it is in, the power to control the root is largely a restrictive authority. Since the U.S. is, after all, a government, the only real way to ensure that that power is not used in ways inimical to Internet freedom is to distribute its governance to the entire global community of stakeholders.
• Suggesting that there may be security consequences or concerns that could undermine the transition belies what Asst. Sec. Strickling clearly stated in his testimony –  an inter-agency review involving the Defense Department, Homeland Security, the Justice Department and others had already revealed no objections to the transition. In this regard, the Administration may be able to help its own case. While inter-agency deliberations are typically confidential, it may benefit agencies to release details so any proposals developed can address what issues were discussed (if any).
• Those who fear an “ITU takeover” or, even less plausibly, a “Putin takeover” or “Chinese takeover” of the root are completely unable to provide plausible scenarios by which this could happen because of the end of the NTIA contract. How exactly does the absence of NTIA in the root zone modification loop suddenly make an intergovernmental treaty regulating ICANN more likely than it already is? And how exactly does the IANA contract prevent Russian tanks from rolling into Marina del Rey Los Angeles, where ICANN is headquartered?  ICANN and its robust multistakeholder community and the multinational corporations who run top level domain registries are not exactly going to throw themselves into the hands of the ITU, much less the Russian or Chinese states. The only remotely credible “takeover” or abuse scenarios – e.g., those provided by Mr DelBianco – pinpoint ICANN itself or its own Governmental Advisory Committee (GAC) as the most likely culprits. For example, if ICANN the corporation had integrated control of both the policy making process and the root zone implementation and publishing functions, an ICANN that became taken over by the governments via the GAC, or by its own board, would be very hard to control. The real tragedy of the Congressional intervention is that it is massively diverting attention from the real issues in the transition: the issue of the accountability of ICANN itself, and the need for structural separation of the IANA functions from ICANN’s policy making process.
• On a more positive note, solely requiring the GAO to examine process closely could actually be helpful under the right conditions. Any examination should not be internally focused on agencies, rather it should be externally focused on ICANN.  This could help keep ICANN, who was assigned the task of convening stakeholders to develop a proposal despite its own interests in assuming the IANA functions, an honest broker in the process.