Questions the US Congress should ask in its IANA transition hearing

On February 25 the Senate Commerce committee will be holding hearings related to ICANN. For Congress, the hearings will be a progress report on the IANA transition and the ICANN accountability process. Testimony will come from the Assistant Secretary of Commerce Larry Strickling, ICANN CEO Fadi Chehade, and business lobbyist and former State Department ambassador David Gross.

As independent academic experts involved in both processes, IGP suggests that Senate committee members who want the real story about what is happening in the transition need to do two things. First, they need to read the quick briefing below on the process and its status so they won’t be befuddled or misled by complex process details. Second, they should consider asking some of the cleverly designed, b.s.-avoiding questions we propose below.

Briefing

There are two processes underway, not one. They need to be kept distinct.

  1. There is an attempt to bring an end to the Commerce Department’s contractual oversight of the IANA functions.
  2. There is an attempt to reform the accountability of ICANN’s policy making processes.

1) NTIA contractual oversight of IANA functions

The IANA functions are technical. Currently performed by ICANN, the IANA department maintains registries for the domain name root zone, the protocol parameters specified in IETF standards, and IP addresses (numbers). Remember that holy trinity – names, numbers and protocols – because you will hear a lot about them in this and future hearings. The NTIA withdrawal is an attempt to make the management of these technical registries self-governed by the Internet community and insulate them from control by governments. This ‘bottom-up’ process is taking place at two levels. At the bottom there are three operational communities running working groups to develop proposals for their part (names, numbers, protocols) of the IANA functions. The names process is centered on ICANN, the numbers process is centered on the Regional Internet Registries, and the protocols process is centered on the IETF. The names group is called the Cross-community working group on the IANA stewardship transition (CWG-IANA for short). When they reach consensus, each of these communities passes on their proposal to the IANA Stewardship Coordination Group (ICG). The ICG is chartered to ascertain that the proposal is complete, has consensus, fulfills accountability requirements, meets the NTIA criteria, and is compatible with the other proposals.

Current Status: The ICG has received two of the three proposals on time and in good shape, from the IETF (protocols) and from the RIRs (numbers). The Names group is lagging because it cannot agree on the appropriate accountability mechanisms for IANA. ICANN is resisting progress because it wants to maintain a monopoly on the names-related IANA functions, and it doesn’t want the community to be able to move them to another service provider.

Stakes: If congress is concerned about the risks of an “Internet takeover” it should try to make sure that the IANA transition keeps the IANA functions operator subject to contractual arrangements with its direct customers. An IANA that is a monopoly of a particular organization (e.g., ICANN) could be taken over and abused if that organization is captured or dominated. If the names, numbers and protocol communities contract for their IANA functions, any takeover attempt could be thwarted by ending the contract and finding another operator.

2) Reforming ICANN’s policy process

ICANN’s policy process makes decisions about issues like how many new top level domains there will be, what kind of regulations domain name registrars and registries must conform to, etc. Most of the controversies related to ICANN that Congress hears about relate to the accountability of ICANN’s policy process. It has been an issue because ICANN can be arbitrary and top-down when it is supposed to be bottom up, consensual, and governed by predictable and impartially administered processes and rules. A surprisingly unified ICANN community has seized on the IANA functions transition to force ICANN to take accountability reforms seriously. ICANN formed a Cross-community working group on Enhanced Accountability (CCWG-Accountability) to develop these reforms. But its proposals must be approved by the ICANN board before they can be implemented. ICANN has agreed to implement some of the proposals before the IANA contract with the U.S. government is allowed to expire.

Current Status: CCWG-Accountability is proposing a broad range of bylaw changes, restrictions on ICANN’s mission and scope, and revised appeals mechanisms to make ICANN’s policy making process more accountable to its constituents. Unlike CWG-IANA, CCWG-Accountability has not been deadlocked on principles, at least not yet. But it is proposing a fairly sweeping set of corporate governance changes and it is not known how long it would take to approve and fully implement them, or what the long-term impact of those changes would be. Furthermore, ICANN’s board can veto proposals (i.e., refer them back to the community for further consideration).

Stakes: The reform of ICANN’s policy making process can help to make ICANN immune to domination or takeover by governments if it ensures that ICANN stays within a narrow policy remit and does not try to regulate the Internet. The reforms can also help to ensure that the governments operating within ICANN through the GAC do not overpower and dominate the multistakeholder process.

These two processes are interrelated, but they address very different issues. The IANA functions are a set of technical and operational functions that implement policy – they don’t make policy. The IANA department directly serves a narrow set of customers (domain name registries, regional number registries, and the IETF). ICANN’s policy process, on the other hand, is a forum for working out what the policies will be. It is and should be open to any and all stakeholders.

Informed Questions for astute Senators

Now for the fun part. We propose some ideas for cross-examining Strickling and Chehade.

Questions for Assistant Secretary Strickling:

Currently the IETF has a severable contract with ICANN to perform the IANA functions, and the numbering community has proposed a similar model to the ICG. If a contractual model works for protocols and numbers, why has the NTIA indicated that it doesn’t like the draft proposal to develop the same contractual model for the domain name functions?

If ICANN has permanent control of the IANA functions, then wouldn’t a takeover of ICANN’s board by governments or some other faction give them operational control of the domain name system root?

Many stakeholders have become concerned that NTIA and ICANN have become a bit too cozy over the years. If the ICG gives NTIA a proposal that meets all your criteria and enjoys widespread support in the public comment period, but is opposed by ICANN’s board, will the NTIA reject the proposal?

During the Singapore ICANN meeting, many complaints surfaced that the NTIA was interfering in the work of the CWG-IANA, making its preference known for an “internal” model which gives ICANN a perpetual monopoly over the IANA functions. Are these concerns justified?

Is it true that in a private meeting with the Registry constituency in Singapore, you warned them not to support the “contract co.” proposal that was being considered by CWG-IANA?

What would be the effect on the rest of the world if NTIA and ICANN are seen as the main drivers of the proposal for the IANA transition? Do you think it would discredit the multistakeholder model?

It is generally agreed that the IANA functions operator should merely implement policy and that ICANN’s policy making process should be strongly separated from IANA implementation. Some separation is currently required by the IANA contract. How can that separation be maintained when the NTIA contract is terminated?

Questions for Fadi Chehade

In commenting on the CWG-IANA proposal, ICANN said that “ICANN was purpose-built to be the home of the IANA functions.” If that is true, why is only about 5% of your budget required to support the IANA functions operator? What does the other 95% of your budget go to?

In Singapore, your CFO is on record saying they were working to develop the fully-burdened cost of providing the IANA functions within a week. Has this information been shared directly with the multistakeholder working group (i.e. CWG-IANA) responsible for developing the naming proposal?

If ICANN is doing such a great job running the IANA functions, why is it so opposed to giving the community the option to issue an RFP and entertain bids from other potential IANA functions operators?

Question for Chairman Thune

We can’t resist adding a question for the Senator Commerce Committee chairman himself:

If you are interested in “preserving the multistakeholder model of internet governance” why don’t your hearings listen to multiple stakeholders? You have the U.S. government, a former U.S. government ambassador who lobbies for big business, and ICANN, Inc. Where is the technical community, where is civil society, where are domain name registries and registrars, where are Internet users? Why are the chairs of the ICG, the CWG and the CCWG not represented here? Aren’t they supposed to be running the process – not ICANN or NTIA?

If you’ve read this far, you are really into this issue! So you are invited to send us your own proposed question for Strickling, Chehade, and Gross. If we like it, we will add it to the list, with attribution. Use the comments field or send an email to info@internetgovernance.org