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If the Stakeholders Already Control the Internet, Why NETmundial and the IANA Transition?

Philip S. Corwin

Last weekend C-Span, the public service network that broadcasts proceedings of the U.S. Congress and other U.S. government functions, aired a segment of its series "the Communicators" featuring ICANN CEO Fadi Chehade; C-Span describes the show as "Half-hour conversations with the leaders who shape our digital future". While the interview is actually just 28 minutes long, and appears to have been recorded on January 28th, it contains some surprising statements that raise some intriguing questions. The intervening NTIA announcement of the intent of the United States to step back from and transfer its IANA functions contract counterparty role by September 2015 makes the answers to those questions even more important — especially given the uncertainty regarding what effect that transition will have on ICANN's accountability and transparency in the future.

CEO Chehade is rather clearly on the record that ICANN's relationship with the U.S. (of which the last remaining shred is that U.S. role as IANA counterparty) is no longer sustainable and must be replaced by the "globalization" of ICANN and the IANA functions within a very narrow time frame. What drives this viewpoint are Edward Snowden's NSA revelations and the purported resulting loss of "trust" in the U.S., even though the identity of the IANA counterparty has no effect on the ability of the NSA or any other intelligence agency to conduct Internet surveillance.

As a result of that perspective, the Montevideo Statement was issued, 1Net was established, Brazil is hosting the NETmundial meeting on Internet Governance in April, and ICANN stakeholders have been reacting to all these top down developments as best they can — most recently through hurried drafting and submission of the "Contribution from the ICANN Cross Community Working Group on Internet Governance” to NETmundial's organizers (see submission #179; the author is a member of the CCWG on behalf of ICANN’s Business Constituency).

Given all this anxious frenzy, it was somewhat surprising to hear CEO Chehade reply, when asked of the consequences of a U.S. loss of control over the Internet, "'Losing control' assumes that the U.S. has control today over the Internet," adding the observation that control is "really already in the hands of the stakeholders. It is not in the hands of the U.S."
He further explained, "The function which the U.S. has today, which is a very minimal function, of oversight" will be "passed on to ICANN through its multistakeholder accountability mechanisms." Characterizing the U.S. role as one of stewardship, he observed, "It is time for the U.S. to consider that the stewardship is ready to be passed to the stakeholders, as it has always envisaged." Whatever stewardship is, it seems to be different than and subordinate to control.

The NTIA's announcement of "its intent to transition key Internet domain name functions to the global multistakeholder community" does not take a clear position on whether Internet control is at stake. Intriguingly, during a March 15th conference call CEO Chehade revealed that White House staff had been involved in the timing and content of the NTIA announcement, which may raise questions about whether the decision is cut from the same cloth as the Obama Administration's "lead from behind" foreign policy stance and an implicit acceptance of the view that the NSA revelations have irrevocably eroded trust in the U.S. stewardship role vis-à-vis ICANN.

As for the NETmundial conference, Chehade sees its role as producing a document addressing "the core Internet governance principles that would define" the evolution of "governance networks", including "what's on the Internet" and "the use of the Internet".

Those views raise some important questions:

  • If the U.S. has already ceded control of the Internet, shouldn't that have been pointed out to those who believe that the IANA counterparty role conveys a substantial degree of control that the NSA revelations have now made insupportable? ICANN instead utilized the Snowden leaks to justify and pursue its globalization agenda.
  • If the stakeholders already have control of the Internet, do they stand to gain anything from hasty, ad hoc evolution efforts? Or are they more likely to lose some considerable degree of control to governments and multilateral governance models? True evolution is a slow and organic process, but what has been occurring lately is more akin to GMO-style intervention to force predetermined evolutionary leaps. As regards the future role of governments, no one should think that the NTIA announcement precludes substantial government involvement in new ICANN oversight mechanisms and related technical functions. The declaration that "NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution" has more than enough wiggle room to permit governmental involvement so long as it does not rise to the role of leadership, and that type of proposal could well emerge from a NETmundial conference featuring very substantial governmental participation and feed right into the ITU meeting to be held late this year. And ICANN's transition to a litigation-proof INGO headquartered in Geneva can take place further down the road, after its current Affirmation of Commitments to the U.S. is replaced by one entered into with "the world". This is a long game being played, but in the short run NTIA has left itself with little to no ability to say "No" to whatever transition mechanisms are developed over the next eighteen months as any attempt to delay will be cited as evidence of "U.S. hegemony".  Of course, the question of whether legislative authorization is required for IANA transfer remains unanswered, and Congress may weigh in with its own views, especially if there is a rising chorus of concerns about the direction and momentum of ensuing developments — raising the prospect of a full-blown separation of powers dispute between the U.S. legislative and executive branches.
  • How is a two-day stand-alone ad hoc Brazilian conference composed of 700 individuals plus remote participants going to produce "Core Internet governance principles"? The herculean task of synthesizing and reconciling the 187 "contributions" that were submitted by NETmundial's March 8th deadline seems better suited to a supercomputer than humans (a useful compendium of NETmundial submissions addressing ICANN and IANA can be found here). The very diversity of the viewpoints they express allows for the selective citation of any portion of them to justify whatever principles and roadmap emerge from that meeting.
  • Does raising questions about what is on the Internet and how it is used inevitably implicate issues that are the natural province of governments rather than technical organizations, and thereby substantially increase the risk that multilateral, government-centric approaches will be advocated in a Sao Paulo conference that is about far more than ICANN and the IANA transition? That would be worrisome given recent trends toward increased government digital content controls. Russia has just blocked multiple websites questioning its actions in Crimea on the grounds that they encouraged "illegal activities and participation in public events held in violation of the established order." That action was taken pursuant to a new law effective February 1st that allows authorities to block sites containing "extremist" content or calls for unauthorized public gatherings. And Turkey, host nation for ICANN's Istanbul hub and already the #1 government in the world for Google takedown requests, passed its own new law in February broadening the power of its bureaucrats to censor the Internet without any court review on the purported rationale of protecting personal privacy (although the actual motivation was enhancing the regime's ability to quash leaked reports on endemic government corruption).

In the course of the interview CEO Chehade makes a number of other significant statements:

  • Asked about keeping ICANN's headquarters in Los Angeles, he notes the recent addition of the Istanbul and Singapore "hubs" and remarks that ICANN now has "tri-quarters". Are tri-quarters consistent with the letter and spirit of ICANN's pledge in the Affirmation of Commitments to remain headquartered in the United States? Of course, following the IANA and AOC transitions from the U.S. to "the world", that requirement will likely disappear and in any event will be unenforceable.
  • He observes that the $185,000 application fee for new gTLDs "is turning out to be about right". This seems to indicate that ICANN is finding ways to expend every dollar and applicants shouldn't expect any refunds.
  • He sees the potential for "thousands of gTLDs", indicating that ICANN does plan to hold additional application rounds. ICANN's central-bank like ability to mint new currency in the form of gTLDs increases the dangers of an autocratic and even corrupt organization arising absent enhanced accountability and transparency. The first new gTLD round brought in more than $300 million in application fees alone, and future rounds may prove equally or more lucrative. While future market demand cannot be predicted, the discovery that top level protection mechanisms were useless for companies holding generic words as valuable trademarks could ensure a steady stream of defensive gTLD applications from the corporate sector in future rounds.
  • He views controversial new gTLDs like .sucks as a matter for the marketplace to decide. U.S. Senate Commerce Committee Chairman Jay Rockefeller has a distinctly different view, having recently sent a letter to ICANN in which he characterizes that gTLD as "little more than a predatory shakedown scheme" and opines that delegating it would undermine ICANN's credibility.
  • Finally, in what appears to be an instance of revisionist history, he declares "the conference in Brazil...was called for by President Rousseff". However, immediately after meeting with President Rousseff in October 2013 he was videotaped saying, "today I am very pleased to share with you that Her Excellency Dilma Rousseff has accepted our invitation that we hold next year a global summit". This distinction is not trivial. The ICANN Board's November 17, 2013 "Resolution Re: Multi-Stakeholder Internet Governance" states "the CEO regularly reported to the Board as these activities [of the CEO] were emerging, to which the Board provided insight, guidance, and support through reports at Board meetings on 23 October 2013, 8 November 2013 and 16 November 2013". If ICANN issued the invitation that Brazil host a "global summit" on Internet governance it would be consistent with activities that the Board claims to have authorized — but if Rousseff extemporaneously called for the meeting and Chehade acquiesced on the spot he could not possibly have consulted with and received approval from the Board.

As the coming months bring extended debate on where the IANA counterparty status and functions should reside upon transition from the NTIA it is paramount that any solution enhance and not diminish ICANN's accountability and transparency. In this regard, Professor Milton Mueller's cogent observations on the NTIA announcement are extremely relevant:

If there is one false note in the NTIA announcement, it was the implication that ICANN itself should control the process for crafting an appropriate transition plan. One of the key principles of the IGP plan that has gained widespread support is the idea of structural separation of the root zone management functions from the policy making functions. The former is technical and operational, the latter is highly political. We need to keep those two things apart. Keeping them apart ensures that those with policy and political objectives must win public support for their ideas in an open policy process, and cannot impose them upon us by seizing control of the operational levers of the global domain name system.

Despite the impeccable logic of this separation of powers, everyone needs to understand that ICANN as an organization has a very strong interest in gaining control of both the technical-operational and the policy making functions. Controlling both makes ICANN a far more powerful, and far less accountable, entity. Like all organizations, ICANN wants to achieve autonomy and strengthen itself. Countervailing forces in the Internet community will be needed to keep it in check.

In this regard, handing the oversight function over to the technical groups that immediately welcomed the NTIA announcement and signaled their intent and desire to become its stewards — "The Internet technical community is strong enough to continue its role, while assuming the stewardship function as it transitions from the US Government." — could be a very large mistake (many of these groups were also signatories of the Montevideo Statement last October which called for globalization of ICANN and the IANA functions). ICANN dominates these groups in terms of functions, staffing, and monetary resources, and therefore such a handoff could be equivalent to handing ICANN's oversight function to itself and result in a serious diminishment of accountability.

Homeland security consultant Paul Rosenzweig has also pointed out the many concerns that must be addressed as ICANN's relationship to the world evolves:

Boiled down to its simplest form, the announcement yesterday was a statement by NTIA that it was not going to enter into another contract — that, instead, it would let ICANN have the responsibility of running the IANA function on its own. The only condition that NTIA set for the transition was that ICANN develop an internal mechanism for oversight and win the trust of crucial stakeholders around the world...ICANN may not necessarily be in a good position to take over this responsibility (as anxious as it is to do so)… ICANN is often thought of as unaccountable. It's [sic] multi-stakeholder model of governance attempts to bring all parties to the table. But that's an awfully big table.  In the end, the ICANN executive group usually takes the initiative and drives the agenda — and without the check of the NTIA (however modest it has been in the past) they may have greater leeway to do as they please. More worryingly, from my perspective, is the question of technical expertise. It is far from clear to me that ICANN is ready and able to take over the implementation role of root zone management. The worst possible result would be a broken DNS system. The move by the United States to start this transition now is either very canny or panicked. The optimist in me wants to think that the transition to ICANN management is an effort to forestall an even worse result from takeover of network administration by the ITU...The pessimist, however, sees this as a reaction to the Snowden disclosures. All of a sudden American stewardship of the network is suspect. Some, hoping to defuse the anger, may have chosen to rush to give up that stewardship, without thinking through the consequences.

This author recently wrote in great detail "a wide range of concerns and questions regarding ICANN's current operations and future plans. Central to all of them is the issue of whether ICANN is currently operating with sufficient accountability and transparency, through a bottom-up consensus process, and in the interest of the global Internet-using public. The answers to these questions will determine the future stability and security of the domain name system and the growing global e-commerce that it supports."

That analysis also contemplated a potential transfer of the IANA counterparty function, stating, "it is incumbent that the U.S. government engage in an open and public discussion of the legal requirements for and implications of such action. Given the likelihood that any such transfer may require implementing legislation, and in any event should only be undertaken by the Executive Branch with the unmistakable backing of Congress, there is a clear and present need for all of the Congressional committees with jurisdictions and responsibilities related to this critical issue to begin to engage in focused oversight, investigation, analysis and decision-making. Given the history of the development of the DNS this responsibility falls upon the U.S. and should not be shirked." It is unclear whether NTIA and the White House engaged in any dialogue with Congressional leaders prior to making the transition announcement, but the need for Congressional scrutiny has just increased exponentially. The results of a botched handover are so potentially consequential to economic and national security that Congress should wade in soon to scrutinize the implications of and the legal basis for the NTIA's action.

Whether the results of NETmundial are good, bad, or indifferent, it will be a meeting that ICANN asked Brazil to host on the premise that, as CEO Chehade stated in October, "the trust in the global Internet has been punctured, and now it's time to restore this trust through leadership and through institutions that can make that happen". But if the U.S. has already ceded control of the Internet to its stakeholders why is the issue of its trustworthiness even relevant, and why is the NTIA announcement front page news?

As we initiate what will almost certainly be a contentious global debate, it is worth pausing a moment to ask whether it is an inevitable stage of Internet governance evolution or a manufactured crisis designed to enhance autonomy and diminish accountability. ICANN has played a hyperactive role in bringing events to this point, and it remains to be seen when the dust finally settles whether it will regret trading the rather benign scrutiny of the U.S. for an oversight regime that may well be far more complicated and politicized.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm. He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own.

Related topics: ICANN, Internet Governance, Top-Level Domains

 
   
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Comments

Fracturing of the Internet Michael Castello  –  Mar 16, 2014 7:20 PM PDT

Spot on Phil. It feels as though Trotsky has risen from the grave and we are in a perpetual revolution whereas the few dictate to the many. Anyone that thinks the multi-stakeholder model is healthy is in for a surprise. The attitude of those in charge at ICANN appear to feel that they know better then what the West has achieved thus far. What, in my opinion, will transpire will be governments that take control and fracture the internet through taxation and censoring among other things. Maybe intranets like Prodigy and AOL will again make a comeback since they will control sliver of the freedom that what was once a true global and open network. How insidious.

great post philip!i would also like to Charles Christopher  –  Mar 17, 2014 8:32 AM PDT

great post philip!

i would also like to point out another aspect of the timing of this. the history of root splitting is there for anybody to find. with the release of the new tlds the door has been closed on root splitting, icann is now a defacto root monopoly. ask the original .biz registry how this works, as icann "overlapped" that entry.

new tlds should have been introduced, but outside icann control and influence, that is free market competition which also bring ACCOUNTABILITY! the opportunity for this has ended. the icann of today is far different than before the new tlds, before proof of its total control of the root was demonstrated. the only thing left is to try as it did years ago, obtain total immunity from local control, from any a countability:

http://news.cnet.com/8301-10784_3-6172758-7.html

http://archive.icann.org/en/tlds/health1/annexes/convention.htm

dovetail that into this:

http://news.yahoo.com/domain-name-revolution-could-hit-trademark-defence-un-231011348.html

"Under international rules, Web registration firms must void the registration of losers in WIPO cybersquatting cases. The UN body is already hearing its first case concerning a new gTLD, filed in February and pitting a German company against the Dutch registree of the still-inactive website canyon.bike."

canyon.bike?

CANYON.BIKE?

and its only going to get "better" once icann become a legally untouchable entity ....

Great post once again Phil. Any thoughts Constantine Roussos  –  Mar 17, 2014 12:53 PM PDT

Great post once again Phil. Any thoughts what the possible answers to your questions are?

Constantine Roussos
.MUSIC

http://news.yahoo.com/domain-name-revolution-could-hit-trademark-defence-un-231011348.html"Under int Charles Christopher  –  Mar 17, 2014 11:24 AM PDT

http://news.yahoo.com/domain-name-revolution-could-hit-trademark-defence-un-231011348.html

"Under international rules, Web registration firms must void the registration of losers in WIPO cybersquatting cases. The UN body is already hearing its first case concerning a new gTLD, filed in February and pitting a German company against the Dutch registree of the still-inactive website canyon.bike."

case was loss of a GENERIC keyword!

http://www.thedomains.com/2014/03/17/canyon-bike-lost-in-1st-udrp-decision-on-a-new-gtld-domain-name/comment-page-1/

its here, goodbye old internet, welcome new internet ....

WIPO statements inconsistent with LRO decisions? Constantine Roussos  –  Mar 17, 2014 12:55 PM PDT

Thanks for the link Charles (http://news.yahoo.com/domain-name-revolution-could-hit-trademark-defence-un-231011348.html).

WIPO seems to contradict itself. In Legal Rights Objections they denied almost everyone who had intellectual property rights claiming there is no likelihood of confusion if new gTLDs are launched and no harm for trademark holders of brands with trademarks matching gTLDs if they are launched.

Now the head of WIPO is claiming that it "is going to have an impact, which is likely to be significant, on trademark protection. The exact nature of the impact, we aren't sure of at this stage, but it is likely to be significant and disruptive.

Didn't we lose our .music LRO cases because there is no likelihood of confusion or material harm according to WIPO?

Fascinating developments and more inconsistencies within the new gTLD Program.

Constantine Roussos
.MUSIC

Not to distract Philips discussion Constantine, but Charles Christopher  –  Mar 17, 2014 1:20 PM PDT

Not to distract Philips discussion Constantine, but icann is also trying to give special preference to acronymns and other short character strings

"The Generic Names Supporting Organization ("GNSO") Policy Development Process Working Group is tasked with addressing the issue of Protecting the identifiers of certain International Governmental Organizations ("IGOs") and International Non-Governmental Organizations ("INGOs") in all gTLDs and they have published its draft Final Report for public comment."

so they get "international treatment" and yet claim specific rights at the same time:

http://www.wipo.int/tools/en/disclaim.html

"to determine the organization’s juridical status in Switzerland of December 9, 1970, and of the implementation arrangement of the same date related thereto."

from http://www.redcross.org/terms-of-use

"Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, the American Red Cross' liability in such jurisdictions shall be limited to the extent permitted by law."

"this publication is distributed internationally and may contain references to the American Red Cross, the International Committee of the Red Cross (ICRC), and other Red Cross or Red Crescent Society services, products, and programs that are not in your country. These references do not imply that the American Red Cross, the International Committee of the Red Cross, or other Red Cross and Red Crescent Societies intend to announce or provide the programs, products, or services in your country."

we are being reminded that we are just pawns in the game .... seems clear to me why hiding under untouchable international status (by use mortals at least) would be desired ...

I have no love of us/icann running the root, but the right solution would be to continue splitting the root, so we all can decide if we want to deal with icann or someone else. and the icann presidents claim that you cant split the root is something we should all know by know HAS BEEN DONE and its works. In fact Chinas root splitting, once revealed, placed icann into damage control and finally address the issue of idn tlds. China said we'll do it ourselves, and last I looked china "split" was still in their cctld servers. some may recall China was selling IDN versions of .COM and .NET for $75 each ....

Back to Philip and the lastest illusions we have been presented with.

Very interesting points Charles. Whether ICANN's action Constantine Roussos  –  Mar 17, 2014 2:04 PM PDT

Very interesting points Charles.

Whether ICANN's action is to hide behind an untouchable international status remains to be seen but you might have a point here. If history is indicative then it is fair to assume that ICANN does tend to hide behind structures. For example hiding behind the AGB despite issues pertaining to competition, IP, material changes and inconsistent objection decisions.

Certainly Phil's article strongly points to the fact that there are some "illusions" in place which deserve some clarifying answers.

The mere inconsistencies of statements are frustratingly confusing and point to an organization which lately has focused on transferring accountability to 3rd-parties and transferring risks to communities (e.g rightsholders whether they are copyright or trademark related) without repercussions instead of assuming accountability itself for its actions.

Question is who is the "global multi-stakeholder" that ICANN points to and what are these "multistakeholder accountability mechanisms"? ICANN claims to have a bottom-up process but this too is an "illusion". It is true that you can post public comments but are they ever incorporated at the expense of special interest groups? New TLD Auctions are an example. The EU and others (including us) posted comments about competition, not merely awarding gTLDs based on "deep pockets" and leveling the playing field (to be consistent with ICANN Bylaws and goals of the new gTLD Program). But ICANN did not incorporate any of these comments. They were ignored. This happened with public comments over the years pertaining to the CPE scoring treshold (still no answer by ICANN why the 14 point threshold was determined) and the dangers of confusingly similar gTLDs (e.g synonyms and plurals/singulars). Those were ignored and not we are now facing the consequences.

The beauty of the multi-stakeholder "illusion" is that ICANN can claim that the AGB was written over years of feedback from the community but obviously the truth is that such feedback from many groups was rejected and not incorporated because the truth is that ICANN staff or the Board are the final decision-maker on "public comments" i.e it is a top-down process of decision-making. One can argue it is a bottom-up process of submitting comments but what is the point of such comments if in nearly every case the "special interest" groups always squash smaller groups? It is clear some comments from certain groups (special interest groups) are weighed more than other groups (a registrant or a smaller player without as much resources as others).

So, in this environment where ICANN is more global, how does one ensure the bottom-up process does not get worse than it already is?

Phil hits the nail on the head: Is this an "inevitable stage of Internet governance evolution or a manufactured crisis designed to enhance autonomy and diminish accountability?

I hope it is the evolution of Internet governance and not diminishing accountability.

Constantine Roussos
.MUSIC

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