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Congress Must Approve Transfer of IANA Function to ICANN

Berin Szoka

Earlier this year, the Obama Administration announced its plans to turn over the very heart of the Internet — administration of the the "root zone file" that serves as the Internet's master address book — to the control of ICANN, the non-profit corporation set up by the Commerce Department to coordinate multistakeholder governance of the Internet's domain name system in 1998. On Monday, Republican leaders of the House and Senate Judiciary Committees sent a letter asking the Government Accountability Office to study whether a Congressional vote on the transfer is required under the Constitution's Property Clause because administration of the root zone file is a government asset, created under government contract.

Some will no doubt dismiss the letter as Republican obstructionism. But the letter does not object to the transfer as such. Indeed, eventually making the transfer has been longstanding U.S. policy — assuming ICANN put in place appropriate governance mechanisms to ensure that the strange non-profit entity remains accountable and transparent, and is not captured by particular interests, such as intellectual property rights holders or, far more seriously, foreign governments hostile to Internet freedom.

At stake are two issues:

  • Constitutional/legal: Should Congress have the final say?
  • Policy: Is the deal good enough? Will the safeguards being debated right now by the ICANN community be adequate in the long term?

Far from frustrating U.S. diplomatic objectives, submitting the deal to Congress for approval would actually further the entire point of the transition in two ways.

First, it would put pressure on ICANN to produce meaningful institutional safeguards. The Administration, having already committed itself to the transfer, has given up much of its negotiating leverage, since those inside ICANN know that the White House will probably agree to the transfer next fall just to declare victory before Obama leaves office — even if the safeguards prove to be little better than ICANN's past efforts at creating accountability mechanisms.

Second, and crucially, the Administration's decision to go it alone — entirely typical of its general approach to Congress — has created the very real possibility of the entire transfer blowing up in court after Obama leaves office. If the transfer is made without Congressional approval, it will eventually, if not immediately, be challenged in U.S. courts, which will continue to have jurisdiction over ICANN. If a court rules that the root zone file constitutes property (a question the GAO left unresolved when it last studied the issue in 2000) and that it belonged to the U.S. government, all hell will break loose. The entire point of the transfer is to finally address widespread, and understandable, concern that the U.S. government "owns the Internet." What will the world think if an American judge suddenly takes the Internet back?

The White House has handled this issue poorly from the start — apparently failing even to brief Congressional leaders before announcing its plans for the transfer. This has needlessly politicized a policy area that, until then, had never been partisan. Rather, this issue had seen overwhelming bipartisan consensus against the very real possibility that ICANN would be displaced by the International Telecommunications Union, an organ of the United Nations, where repressive governments could exercise far greater control. Russia, China and the other countries that pushed hard for an ITU take-over in 2011 and 2012 would no doubt take every advantage of the diplomatic disaster resulting from a U.S. take-back.

The Administration seems to be more interested in trying to repair its own credibility on Internet Freedom — what's left of it after the Snowden revelations — by agreeing to the transfer. But they must also worry that, if the transfer is put up for a Congressional vote, conservative Republicans will demagogue the issue. That's certainly possible — and it would be a disaster, too. But bypassing Congress could produce a far worse outcome (the court-ordered take-back). And even if it doesn't — a question that could linger for years until someone finally raises the issue in court — there's good reason to think that the Administration simply won't have enough leverage to get a good deal on its own. So, ironically, free speech advocates and those worried about excessive enforcement on intellectual property could stand to lose the most without a Congressional approval requirement.

It's not too late for the White House to do what it should have done in the first place: agree to submit the deal for Congressional approval and calmly explain why continuing to hold onto the root zone file would actually undermine American interests.

That would require the President actually talking to — and maybe even working with — Congressional leaders. That's the kind of thing that came easily to President Clinton, whose administration handled the creation of ICANN and started planning for an eventual transition of the IANA function. But that type of bipartisanship seems to be utterly alien to our current President.

It would also require Republicans to be realistic about this: dragging out the transfer process probably undermines our own leverage in negotiating with ICANN. We're in an awkward situation now: what gives us our leverage (claiming ownership of the Internet) has also served to fuel efforts to undermine ICANN. We need to use that leverage smartly to put ICANN on a secure footing as an accountable and transparent — if quirky — decision-making body that remains independent of foreign governments. At the end of the day, our greatest leverage isn't the root zone file, it's that ICANN is in control and remains subject to the jurisdiction of U.S. courts as a California-based non-profit.

In short, there's a deal to be had here, but the first step towards it is acknowledging that Congressional approval may very well be required by our Constitution — and even if we're not sure as a matter of law, it's a good idea, as a policy matter.

By Berin Szoka, President, TechFreedom
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There's of course the option of not Todd Knarr  –  Oct 01, 2015 11:18 AM PDT

There's of course the option of not transferring the file. The root zone's not the root zone file, and since the identities of the root nameservers and the nameservers for the TLDs are well-known it's trivial to populate the root zone data without having the root zone file. So ownership of the root zone file itself is pretty much a moot point, it's not required to operate the root zone. Realistically the contents of the root zone aren't going to change anyway, nobody's going to take control of .com away from Verisign for example by delegating the "com." domain to someone else.

From a practical standpoint it doesn't matter who owns the root zone file, because there isn't a singular one (see AlterNIC, OpenNIC, the Open Root Server Network). What matters is consensus among DNS operators about where to pull the root hints from to seed their DNS servers. Right now that consensus is iana.org. The worst thing that could happen is for that consensus to break down, with two or more large groups of DNS operators each using a different root zone (different in content, not just source), which may happen if there's any resistance to IANA under ICANN controlling the root zone (the split would be US vs. non-US DNS operators, and large chunks of the rest of the world aren't too thrilled about the US's continued control over the root zone as it is).

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The rootzone changes nearly every day now McTim  –  Oct 01, 2015 12:57 PM PDT

Hi Todd,

The rootzone has been adding several new TLDs daily (most days) and have been doing so for ~ 2years.

Historically however, it has largely been a static file.

Totally agree. If anything, that's why Republicans Berin Szoka  –  Oct 01, 2015 1:00 PM PDT

Totally agree. If anything, that's why Republicans SHOULD approve the transfer.

Your Splinternet scenario is, indeed, scary. I can't think of anything that's more likelyt o bring that about than a U.S. court taking the IANA function back after the Administration gives it away without Congressional approval. That's all the more reason to make sure the transfer is actually effective when it goes through.

My point is that the detail won't be effective without Congressional approval.

The Administration not transferring it could trigger Todd Knarr  –  Oct 01, 2015 1:11 PM PDT

The Administration not transferring it could trigger the same scenario too. Basically IANA's already a department of ICANN, they already control the root from a technical standpoint, it's better to simply acknowledge that the formal "transfer" is more checking off the completion of a technical process than something subject to political control.

almost correct McTim  –  Oct 01, 2015 1:37 PM PDT

IANA is an administrative thing, they administer technical resources (ports, protocols, numbers, names, etc).  VRSN controls the root from a "technical" standpoint, IANA from an administrative POV.  I agree however, that it is not subject to political control, no matter how much some would like it to be.

You are confused about what is being transitioned...... McTim  –  Oct 01, 2015 12:54 PM PDT

The "transition" that you seem to be talking about is the IANA contract, however, that != the rootzone itself.  There is a separate contract with VRSN that addresses RootZone Maintenance (RZM).  Please don't conflate the two.  NTIA has only very recently proposed RZM contract transition, and it's not to ICANN!

Sorry, I originally wrote this for a Berin Szoka  –  Oct 01, 2015 12:57 PM PDT

Sorry, I originally wrote this for a lay audience and was trying to keep this high-level. I stand corrected.

Congressional Background John Laprise  –  Oct 02, 2015 11:26 AM PDT

While we await word from the GAO, it seems unlikely that it will rule in favor of Congress over the Property clause. The Congressional Research Service wrote an informative summary of the current situation back in August and is here courtesy of Steven Aftergood and the FAS.

http://fas.org/sgp/crs/misc/R44022.pdf

"The U.S. government has no statutory authority over the DNS" pg1 para 3

http://www.internetgovernance.org/2015/09/29/does-the-iana-transition-constitute-a-transfer-of-us-go McTim  –  Oct 02, 2015 11:46 AM PDT

a succinct refutation of the above article

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