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Will 2016 Politics Trump Bipartisan Support for the MSM and DOTCOM Act?

Philip S. Corwin

The bitter partisan divide that characterizes so many of official Washington's current policy discussions was conspicuous in its absence at the July 8th hearing held on "Internet Governance Progress After ICANN 53" by the House Energy and Commerce Committee's Subcommittee on Communications and Technology.

In opening remarks that asked "What is the multi-stakeholder community, anyway?", Subcommittee Chairman Greg Waldren went on to declare that he and his colleagues "sought to strike the right balance between supporting the multi-stakeholder model of Internet governance, while still protecting the invaluable tool of communications and commerce the Internet has become".

Waldren also noted that the Subcommittee "heard from the multi-stakeholder community over the last year. And with respect to at least one part of this transition the world spoke with one voice: ICANN must be more accountable if it is to be trusted with the stewardship of IANA".

In a strong vow of support for those ICANN stakeholders engaged in designing new accountability measures, he declared support for all their major goals,

The community must be able to hold the ICANN board accountable, and that means the ability to recall those board members that are no longer representing their community. It also means that once this new system is in place, that it be resistant to capture. Fundamental bylaws that require a supermajority to change, actionable mechanisms that empower the community, independent review of board decisions, and the stress tests to ensure that the system will work as planned are essential elements of an accountable ICANN. We have been talking about these issues for the past year and we will continue to do our jobs to ensure that if NTIA is to agree to a transition proposal, that these changes are fully implemented up-front.

Last month the House acted on a bipartisan basis to pass this subcommittee's DOTCOM Act...The measured approach of the DOTCOM Act properly balances NTIA's role as the U.S. government participant in the multi-stakeholder community with the U.S. Congress' role as NTIA's oversight authority. Our hope is that the Senate will quickly pass this legislation…

Finally, we've said all along that this transition is far too important to be rushed by an artificial deadline. I was pleased to see Assistant Secretary Strickling's testimony states that the transition timeline is flexible, and will extend beyond the September 2015 expiration of the ICANN contract… extending the contract is consistent with the timeline for the work that is taking place on ICANN accountability reforms. Just last week the Cross-Community Working Group-Accountability has indicated that the "Work Stream 1" reforms required for the IANA transition may not be implemented until July 2016.

Ranking Subcommittee Democrat Anna Eshoo, attuned to the kumbaya spirit of the proceedings, concurred with Waldren's view that the revised version of the DOTCOM Act was a bipartisan achievement, adding that the IANA transition must enhance and reinforce the multi-stakeholder model (MSM) of Internet Governance.

(Aside: As for what the DOTCOM Act (H.R. 805) actually does, it prohibits the NTIA from completing the IANA transition for 30 legislative days after it submits a report to Congress on the transition plan and whether it meets the NTIA's previously stated review criteria. That report can't be submitted until after ICANN adopts whatever Bylaws changes are required by the plan. But it does not require Congress to approve the final transition plan, and to block its adoption after the 30-day review plan both the House and Senate would have to pass legislation doing so — which the President would surely veto, and that veto would be almost surely be sustained. Even if the bill is enacted into law, NTIA will remain the sole entity with authority to approve or reject a transition plan.)
Those reassuring themes were echoed in the statements of the hearing's two witnesses, Assistant Secretary for Communications and Information and NTIA Administrator Lawrence Strickling and ICANN President and CEO Fadi Chehade.

Strickling reminded the Subcommittee that

NTIA's goal — over the course of successive Democratic and Republican Administrations — has been to support private sector leadership of the domain name system through the multistakeholder approach… Before any transition takes place, the businesses, civil society, and technical experts of the Internet must present a plan that has broad multistakeholder support and satisfies the conditions NTIA outlined in the [March 2014 NTIA] announcement… These two multistakeholder processes — the IANA transition planning and enhancing ICANN accountability — are directly linked, and NTIA has repeatedly said that both issues must be addressed before any transition takes place…

We appreciate Congressional efforts to work in a bipartisan, collaborative fashion on legislation to ensure that the transition of our role with respect to the Internet Domain Name System progresses in a transparent, responsible and timely manner. The DOTCOM Act, as passed by the House and the Senate Committee on Commerce, Science, and Transportation, would ensure that the transition fully meets the conditions NTIA outlined and that appropriate ICANN accountability measures are in place. Working together in a bipartisan manner will reaffirm long-standing U.S. support for the multistakeholder model of Internet governance.

Likewise, concluding his own statement, Chehade declared that "The [transition] proposal development itself is a triumph of the multistakeholder model."

Chehade's statement also chronicled the totality of the voluntary and unpaid (at least by ICANN) labors that have gone into the design of transition and accountability measures to this point:

In the past 15 months, the multistakeholder community has stepped up to the task that NTIA laid before it. Across the transition and accountability work, stakeholders have logged more than 263 meetings/calls, many of which were ICANN-funded face- to-face meetings, over 13,000 working hours of meetings/calls, not including drafting/document development and over 21,000 mailing list exchanges on these two processes. At ICANN53 alone, over 40 hours of working or engagement sessions were held on the transition and accountability processes in 11 separate working or engagement sessions, in addition to scheduled discussions of the transition and accountability work across nearly all of the stakeholder groups within the ICANN community.

While that tally of community collaboration is impressive, it is also a reminder that the MSM by its very nature requires a great deal of time and effort to reach consensus views — and therefore may not be suitable for situations where quick decisions on divisive issues are required.

The questions asked of the witnesses also displayed no hint of partisan rancor. Subcommittee members from both sides of the aisle sought assurances that ICANN would remain headquartered within and subject to U.S. law post-transition. In reply, Strickling noted that this was in both ICANN's Bylaws and its Affirmation of Commitments (AOC) with the U.S., and that neither of these would go away, while Chehade emphasized that the Bylaws included a commitment to remaining in the U.S. (The truth is somewhat more complicated. The Bylaws commit to a U.S. headquarters but is silent on the prevailing legal regime for the organization as a whole. And, while the AOC is likely to be incorporated into the Bylaws in substantial part as the transition proceeds, the debate is ongoing as to which sections should make that journey — including whether there should be a written commitment to permanent U.S. jurisdiction).

Subcommittee members, with the aid of a detailed staff background memo, also got into such esoteric matters as the difference between Work Stream 1 and 2 accountability issues (the first are required to be implemented pre-transition, the latter shall be further developed post-transition), and the precise supermajority voting ratio that would be required to delete or amend a Fundamental Bylaw (still to be determined).

The only frictions, and they never skewed partisan, arose when Rep. Marsha Blackburn took ICANN to task for ongoing complaints of inadequate enforcement of its registrar accreditation agreements (to which both Strickling and Chehade replied that the matter was "complicated" by other nation's laws) and when Vice Chairman Bob Latta decried the pricing policies of the .Sucks gTLD (to which Chehade responded that the community doesn't want ICANN to set prices, but that the MSM allowed it to change that policy if it wanted to).

Rep. Leonard Lance also raised the issue of the record number of comments that had just been filed in response to an initial working group Report on accreditation standards for registrar-related privacy and proxy service providers, almost all that input generated by Internet privacy advocates strongly opposed to any relaxation of the rules for revealing a domain registrant's identity. In an ominous forecast for the controversial portions of the Report, Chehade observed that the large input showed that the MSM works — and then opined, "clearly, there is not consensus, and without consensus it doesn't get forwarded". Strickling added that the U.S. government "has no position on this difficult issue".

In additional outbreaks of bipartisan, Executive and Legislative branch bonding during the question-and-answer portion of the hearing, Secretary Strickling stated:

  • Congress would have a review role regarding the transition plan even if the Senate failed to pass the DOTCOM Act (a somewhat surprising concession on Executive power for any Administration, and particularly this one which has been so adept at working around the legislature).
  • NTIA would recommend that the President sign the DOTCOM Act if Congress passed a final version looking like the House-passed version.
  • NTIA was consulting with the General Services Administration (GSA) and Department of Defense (DOD) to determine the best means of assuring that the .Mil and .Gov gTLDs remained under exclusive U.S. control post-transition.
  • NTIA would consider the conclusions of a Government Accountability Office (GAO) requested by the full Energy and Commerce Committee, expected to be received later this summer.

Conspicuously, the Subcommittee's questioning steered clear of boring in on whether ICANN's current management practices were operating optimally, despite this being a target-rich environment. For example, despite the penchant of Congressional members to decry wasteful spending, not a single question arose regarding a recent analysis of ICANN finances that found multiple troubling trends:

If you disregard new gTLD money, ICANN's income in 2014 was $84 million, expenses $113 million...excluding top executive pay, on average ICANN employees earned $169,000, an increase of $25,000 (10 per cent) per head since 2013...ICANN's women executives earned on average $17,000 less than their male counterparts...Staff salaries are now 55 per cent of turnover (excluding gTLD income)… Another shocker is ICANN's travel spend, which rose by a staggering 85 per cent in 2014 to $17 million...In 2014, the average cost per ICANN public meeting was $6 million, compared with $3.2 million in 2013.

CEO Chehade, who has often spoken proudly about his tripling of ICANN's staff ranks over an 18-month period, and ICANN's establishment of hubs and outreach offices around the world during his tenure, was not asked by a single member whether he thought this fiscal course was sustainable. Perhaps there is an underlying assumption that a more empowered ICANN community will put the brakes on its budgeting practices. Or perhaps no one wanted to puncture the good feelings in the hearing room.

ICANN also dodged a bullet in that, on the day after the hearing, an Independent Review Panel (IRP) that had been inquiring since the fall of 2013 into ICANN's treatment of one of the applicants for the .Africa gTLD issued its Final Declaration containing these stinging conclusions:

THE ISSUES RAISED AND THE PANEL'S DECISION

After carefully considering the Parties' written and oral submissions, perusing the three witness statements filed and hearing viva voce the testimonies of the witnesses at the in-person hearing of this IRP in Washington, D.C., the Panel answers the following four questions put to it as follows:

1. Did the Board act or fail to act in a manner inconsistent with ICANN's Articles of Incorporation, Bylaws or the Applicant Guidebook?

Answer: Yes.

2. Can the IRP Panel recommend a course of action for the Board to follow as a consequence of any declaration that the Board acted or failed to act in a manner inconsistent with ICANN's Articles of Incorporation, Bylaws or the Applicant Guidebook (AGB)?

Answer: Yes.

3. Who is the prevailing party in this IRP?

Answer: DCA Trust

4. Who is responsible for bearing the costs of this IRP and the cost of the IRP Provider?

Answer: ICANN, in full.

Had the IRP issued its decision just a few days earlier, CEO Chehade might well have been asked why the Board provided such deference to the views of the Governmental Advisory Committee (GAC) on .Africa as to lead to this embarrassing result, what ICANN would do in response to the decision, and what lessons the episode had for the final design of accountability measures.

He also might have been grilled about bombshell revelations concerning ICANN's lack of neutrality in the .Africa application contest, contained in a press report based upon the full version of the Final Declaration, containing all 39 passages redacted by ICANN from the publicly released version:

...most of those redactions concern the fact that ICANN's head of operations, Dai-Trang Nguyen, drafted a letter that was then used by ICANN to advance a competing .africa bid… Essentially, ICANN drafted a letter in support of ZACR, gave it to the AUC, and the AUC submitted the letter back to ICANN as evidence that ZACR should run dot-africa… In one redacted section, ICANN admits it wrote the letter, but argued that it "did not violate any policy in drafting a template letter at the AUC request." Later on it said that there was "absolutely nothing wrong with ICANN staff assisting the AUC."

The article concludes, "This saga is just one more sign that ICANN, as a body, continues to make a mockery of efforts to introduce accountability into its decision-making." This disturbing .Africa saga surely has implications for what must be in the final package of accountability measures.

The July 10th ICANN news announcement disclosing the IRP decision included this passage:

"Consistent with ICANN's Bylaws, ICANN will carefully review the panels declaration and the ICANN Board will be asked to consider the matter at its next meeting on 28 July 2015," said John Jeffrey, ICANN's General Counsel and Secretary.

ICANN has taken the position that under its current Bylaws the decisions of an IRP are merely advisory and not binding. Indeed, that is exactly why so many community members involved in designing new accountability measures have been so insistent that they be made enforceable. If the Board takes actions at its July 28th meeting that seek to evade the full force of this IRP decision, that may in turn invite the inclusion of even more rigorous enforcement mechanisms in the final accountability proposal.

Overall, the hearing left this observer wondering whether the MSM constituted some new form of political Prozac capable of subduing the partisan passions and rude questions that dominate so much of Washington's policy discourse. For his part, CEO Chehade has never appeared as relaxed as he did throughout the hearing — perhaps because he knows that the transition he did so much to engineer will take place after he departs from ICANN next March, and that the challenging task of implementing it and of being the CEO of a more accountable organization will fall upon his successor.

It is of course excellent news that the longstanding bipartisan support for the MSM persists to this day, that Congress is backing up the stakeholders engaged in drafting the transition and accountability measures, and that the dialogue on the transition has evolved constructively far from the kneejerk partisan polarization of March 2014, when NTIA announced its intention to relinquish its stewardship role..

Yet somehow the hearing felt disconnected from the formidable challenges that remain to construct a credible transition package that retains stakeholder consensus, meets the U.S. requirements, and actually stands a chance of improving ICANN's governance and management.

Of course, it is relatively easy to agree on the amorphous concept of multistakeholderism when the convoluted text of an IANA transition and ICANN accountability plan is months away, and their implementation even further down the road. Will the ICANN community be able to fully coalesce on the many details of a final transition plan and the Work Stream 1 tasks that must be accomplished prior to the relinquishment of U.S. stewardship? Will ICANN's legal staff and Board readily acquiesce to the final blueprint, and observe its letter and spirit once the transition occurs? Will the Bylaws amendments and other implementation requirements be achieved on schedule? Will the post-transition community be able to coalesce in the required rations to utilize the new accountability measures, or will internal divisions hamper their operation? These and many other questions will remain unanswered for some considerable time.

One keen observer and very active participant in the MSM and the ongoing transition work, Internet NZ CEO Jordan Carter, just addressed what is really at stake in the transition and accountability process, and how far we are from the finish line, in a perceptive blog post:

ICANN. IANA. Accountability. Stewardship. Transition.

These words together have deep meaning to many of those who participate in or follow global Internet governance. They are also, to be honest, meaningless mumbo-jumbo the vast majority of Internet users…

Later this week, the accountability working group trying to finalise a proposal for community input is meeting face to face. It faces an immense challenge in trying to build consensus between interests, groups and individuals with seemingly very different goals:

  • The U.S. Government's desire to see the transition proceed on time and with broad consensus about the approach
  • ICANN's corporate desire to maintain its influence and resources
  • TLD managers' desire to protect and maintain high quality services with minimal disruption created — either by the transition or by improved accountability
  • Governments' desire to protect their role as arbiters of public policy matters
  • The clear and present desire of the numbers and protocol communities (which have very workable and well-established accountability systems in place) to "get on with it!"
  • A pretty general desire to promote and protect the bottom-up, consensus-driven approach to policy development among ICANN's diverse (multi?)stakeholders.

So, what's at stake?

If we get this right, the United States can end its historic role as steward of the Domain Name System knowing that the DNS is in good hands: that the global Internet community has taken responsibility for a workable, reputable method for making multistakeholderism into something more than a talkshop… If we get it wrong, then the consequences are legion: for the security and stability of the DNS, for the viability of multistakeholder approaches in governing critical Internet resources, in the long term development of the Internet and its technologies staying in the private sector and not sliding into an intergovernmental, treaty based nightmare. (Emphasis added)

In a related post, Carter lays out the ongoing debate in regard to three major issues being addressed by the CCWG-Accountability, which we summarize as follows:

  1. How strong do the accountability mechanisms need to be? — Must they ultimately be legally enforceable or does that invite repeated and protracted litigation?
  2. What is the right role for governments? — While NTIA has made clear that it will reject any proposal that converts ICANN into a government-dominated organization, the current accountability proposal contemplates expanding the GAC's role by providing it with a say on whether accountability powers should be exercised when challenges arise. Is that a wise move?
  3. What is essential to get done in improving ICANN's accountability before the IANA stewardship transition? — The current package of accountability measures targets major issues identified by a series of stress tests, but some stakeholders are questioning whether the package is too complex or difficult to implement, while others are raising new concerns.

There are also questions that extend even further into the future, beyond the transition's completion. How will ICANN's MSM change as an influx of new stakeholders from the developing world engage with an organization which, since its inception, has been dominated by U.S. and to a lesser extent European and Australian participants? Are other major powers beyond the US and EU truly resigned to an MSM in which governments have a subordinate role, or are they merely biding their time until after the U.S. steps back? And will a prohibition on governmental control be eroded by the fact that many of the developing world "private sector" companies likely to engage with ICANN over the coming decade are joined at the hip with or substantially influenced by their governments?

As for that implementation schedule, it was reiterated during the hearing that feedback from the ICANN community indicated that the earliest a transition could occur, if everything went right, was a window stretching from July to September of 2016. That projection will seemingly require NTIA to extend the IANA contract between itself and ICANN by at least one year beyond September 30, 2015 — and that in turn would put the final steps of the transition perilously close to the 2016 U.S. Presidential and Congressional elections, and in the midst of the even greater-than-usual partisan passions they always generate.

As those passions are roused in 2016, and as the final details of the transition and accountability package fully emerge, will the current bipartisan bromance persist on Capitol Hill and between Congress and the Administration?

Let's stipulate that ICANN has never been a significant issue — or an issue at all, period — for most of the U.S. electorate. The Internet is perceived by the voting public to be something midway between air and electricity, essential but ever present save for an occasional technical glitch.

That is precisely why the members of the House Commerce Committee can act in such a bipartisan fashion — hardly anyone in their districts knows about the IANA transition, much less would vote for or against a candidate because of their views on it. The main input to the Congress has come from the companies, trade associations, and public interest groups that follow Internet issues and engage with ICANN — and which, resigned to the transition, are seeking to shape it.

But that lack of partisan division could change, especially if recent governmental cyber-failings such as the apparent Chinese mega-hacking of the Office of Personnel Management's (OPM) database, delivering the sensitive personal records of more than twenty million U.S. citizens to Beijing, become a topic with traction in the candidate debates.

There's also always the possibility that an outlier, shoot-from-the-hip Presidential candidate could seek to play upon more widespread concerns regarding perceived weaknesses in U.S. foreign policy and ever more apparent cybersecurity failings, such as the OPM hack, and charge that the President and compliant members of both parties are acquiescing to an Internet "giveaway" that will leave the U.S. weaker and its adversaries stronger. Such a candidate might even suggest embarking upon a U.S. cyber-wall project to protect key systems and infrastructure from foreign attack. Such a candidate might even suggest that, having invented the Internet, the U.S. should start charging other nations to use it.

In other words, don't anyone tell Donald Trump about ICANN and the IANA transition. Because there's no telling what could trump the current bipartisan harmony on ICANN's future as we head toward the 2016 election season.

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, Policy & Regulation

 
   

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Comments

Philip - While one can never predict John Curran  –  Jul 16, 2015 8:01 PM PDT

Philip -

While one can never predict politics (particularly going into an election year), it's important to remember that there's been an enormous amount of work within Congress and the Administration in better understanding the IANA Stewardship planning activities, and these efforts likely underlies the bipartisan "kumbaya spirit" that you observed during the recent hearing proceedings.

Additionally, the solid progress that has been made to date by the Internet community in developing an IANA Stewardship transition plan has helped significantly clarify what is really being proposed, and this no doubt has made having fact-based discussions of these efforts much easier.

It is true that we cannot predict what headlines or sound bites will appear on tomorrow evenings news, so rather than worrying about the unknowable, the Internet community should view that uncertainty as vivid reminder that we are not yet done, and stay focused on timely production of an IANA Stewardship Transition plan that meets NTIA's requirements. 

There's also another benefit of the generally improved understanding with the USG of the IANA Stewardship transiton effort – it has become far less likely that others will now conflate this task with any number of unrelated Internet policy and cybersecurity issues (although your efforts above were indeed admirable.)

Thanks,
/John

John Curran
President and CEO
American Registry for Internet Numbers (ARIN)

John, on your comment Philip S. Corwin  –  Jul 20, 2015 5:07 PM PDT

Thanks for weighing in and we are mostly in agreement.

As noted in my blog post, "The main input to the Congress has come from the companies, trade associations, and public interest groups that follow Internet issues and engage with ICANN — and which, resigned to the transition, are seeking to shape it." That will likely continue to be the case, as will their continued engagement (along with my own) within ICANN to shape the final transition plan and the critically (more) important accompanying accountability plan. No one engaged in this endeavor expects perfection, and WS2 leaves ample opportunity for fine-tuning. So long as ICANN stakeholders are generally satisfied with the final package delivered to NTIA and convey that view to the Hill the transition should proceed smoothly next year.

As to related issues (and I would argue that they are related in the public mind) I am surprised that cybersecurity has yet to become a campaign issue, especially given the enormity of China's OPM hack and its clear illustration that the USG's computer infrastructure has deficient protection.

The one caveat I'd state is that my experience instructs that real reality and political reality do not always coincide.

Best, Philip

It now appears that my headline should've been "Will the IANA Transition Be Placed on Cruz Control?" Philip S. Corwin  –  Jul 21, 2015 10:08 AM PDT

...with today's news that Republican Presidential candidate and Texas Senator Ted Cruz has placed a "Hold" on the DOTCOM Act in the Senate.

A Hold indicates that a Senator has concerns about a bill and may offer amendments to it or engaged in extended dialogue (a filibuster)when it is brought up for debate.

This move may delay consideration of the bill past the August recess, but should not harm its long term prospects for passage in the Senate. The bigger question is whether Cruz will now start talking about ICANN and the transition on the campaign trail.

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