U.S. Congress Man-in-the-Middle Attack on IANA transition

Late Thursday the House of Representatives passed a consolidated appropriations bill to fund the majority of government through fiscal year 2015. Contradicting their ‘Internet freedom’ rhetoric, Republicans attached a rider to the gigantic ($1.014 trillion) federal funding bill that defunded any attempt by the NTIA to set the domain name system free of government control until October 2015.

The rider is a method of bundling small policy preferences into big, ‘must-pass’ legislation. By attaching small and relatively unpopular items to something very important under time pressure, they make it impossible to get rid of the small things without voting against the entire bill. In this case, voting it down or delaying would have massive negative consequences – a government shutdown. Though routinely used in Washington, such a use of riders is a dishonest and undemocratic form of legislation that prevents open debate and direct voting on a particular initiative.

The global Internet community reacted to the Congressional action with a combination of weariness and growing cynicism about the United States and its role in Internet governance. The action does not stop ongoing community efforts to develop a plan for the IANA transition. But it does prevent the NTIA from spending any time on completing the process. Paul Rosenzweig wrote on the Lawfare blog that this does not totally prevent the transition from happening, because “the act of not signing a contract (which is what NTIA proposes to do) costs nothing.”

But this relatively optimistic view overlooks the fact that completing the transition requires a bit more than just not renewing ICANN’s contract. It also requires NTIA to amend its Cooperative Agreement with Verisign. It requires an orderly transition of authority over the DNS root to whatever new institution the proposal developers come up with. And, if NTIA is to ensure that the transition meets its own criteria – such as not allowing intergovernmental control, having widespread support, upholding the ‘multistakeholder model’ and maintaining the openness, stability and security of the Internet, NTIA needs to review and approve the plan submitted to it by the IANA Stewardship Transition Coordination Group. Rosenzweig was more on target when he wrote, “I read this language as disabling NTIA from engaging in discussions of the transition while not, in the end, preventing the transition itself — a lose-lose proposition if ever there was one.”

The message sent to the rest of the world is unmistakable: the U.S. Congress does not want the world’s Internet users and suppliers to be in control of their own destiny, and has chosen to mount a man-in-the-middle attack on the transition process. That message is highly damaging to the greater cause of Internet freedom. First, it prevents the NTIA from responsibly applying its own, quite reasonable criteria (mentioned above) to the transition. Second, it gives every state in the world, including authoritarian regimes and an increasingly protectionist Europe, a green light to dismiss the arguments for Internet self-governance as a mere rationalization for U.S. control. “You see,” they will say, “the U.S. never really intended to let go, they don’t believe in this multi-stakeholder, nonstate actor stuff any more than we do.” It encourages other governments to ask, “why shouldn’t we go for the same kind of power the U.S. is asserting over the Internet?” and thus encourages the partition of the Internet along national/jurisdictional lines.

But there is some hope. If indeed the NTIA is disabled, and this disabling includes an inability to renew ICANN’s contract, then the contract will expire and the Internet community will have to take charge of the process itself. The U.S. Congress may have just taken a more radical approach to the end of U.S. control. A power struggle may ensue. But maybe that’s OK, if the U.S. chooses to absent itself from the power struggle and leave it to the actual involved stakeholders to work out among themselves.