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NTIA Revs up Rhetoric as IANA Transition Looms

Philip S. Corwin

It's been almost six weeks since the NTIA announced "that the proposal developed by the global Internet multistakeholder community meets the criteria NTIA outlined in March 2014 when it stated its intent to transition the U.S. Government's stewardship role for the Internet domain name system (DNS) technical functions, known as the Internet Assigned Numbers Authority (IANA) functions", and thereby signaled the start of the last lap of the IANA transition marathon.

In the interim since that announcement ICANN held a well-regarded, policy focused mid-year meeting in Helsinki that saw the ICANN community begin to engage on multiple Work Stream (WS) 2 accountability measures that, while deemed not to require resolution prior to the transition, are nonetheless very important matters — including remaining legal jurisdiction questions, heightened transparency tools and powers, human rights, and ICANN staff accountability.

Also, several DC think tanks recently held programs on the transition, at which some speakers advocated the "test drive" approach first broached at a May Senate Commerce Committee hearing. That soft transition concept would somehow provide for a period in which both the transition of IANA functions control and new community accountability powers could be tried out, but with the U.S positioned to intervene if significant problems arose or if the WS2 issues were not resolved satisfactorily. But advocates have yet to advocate a practical means by which this setting ICANN free while retaining residual control could be accomplished, and the clock is steadily ticking down to the September 30th expiration of the current and likely last IANA contract between NTIA and ICANN.

NTIA had already rebuffed the soft transition concept as unnecessary, impractical, and counterproductive, but last week it upped the pressure for transition completion. In remarks delivered last Thursday at the IGF-USA conference in Washington, Assistant Secretary of Commerce for Communications and Information Lawrence E. Strickling delivered a rousing defense of moving forward with the IANA transition, combined with a strong rebuke of transition critics, declaring:

I come here today to speak out for freedom. Specifically, Internet freedom. I come here to speak out for free speech and civil liberties. I come here to speak out in favor of the transition of the U.S. government's stewardship of the domain name system to the global multistakeholder community. And I come here to speak out against what former NTIA Administrator John Kneuer has so aptly called the "hyperventilating hyperbole" that has emerged since ICANN transmitted the consensus transition plan to us last March…

Extending the contract, as some have asked us to do, could actually lead to the loss of Internet freedom we all want to maintain. The potential for serious consequences from extending the contract beyond the time necessary for ICANN to complete implementation of the transition plan is very real and has implications for ICANN, the multistakeholder model and the credibility of the United States in the global community…

Among the most persistent misconceptions is that we are giving away the Internet... Even more extreme (and wrong) is the claim that we are giving the Internet away to Russia, China, and other authoritarian governments that want to censor content on the Internet....

Another false claim is the fear that ICANN will move its headquarters abroad once the transition is complete and "flee" the reach of U.S. law. However, this ignores the fact that the stakeholder community has spent the last two years building an accountability regime for ICANN that at its core relies on California law and on ICANN to remain a California corporation.

ICANN's own bylaws confirm that "the principal office for the transaction of the business of ICANN shall be in the County of Los Angeles, State of California, United States of America." ICANN's Board cannot change this bylaw over the objection of the stakeholder community…

Other claims keep popping up and I do not have time today to correct every misstatement being made about the transition. For example, after living for two years under an appropriations restriction that prohibits us from using appropriated funds to relinquish our responsibility for the domain name system, it is now asserted that this restriction prevents us even from reviewing the transition plan. Yet this claim ignores the fact that at the same time Congress approved the restriction, it also directed NTIA "to conduct a thorough review and analysis of any proposed transition" and to provide quarterly reports on the process to Congress.

In the last couple of weeks, I have heard new concerns about the possible antitrust liability of a post-transition ICANN. However, this concern ignores the fact that ICANN in its policymaking activities has always been and will continue to be subject to antitrust laws…

I could go on but let me close with some observations on the multistakeholder process. There is no question that within ICANN, the last two years have strengthened the multistakeholder model as it is practiced there. Moreover, the accomplishments of the process at ICANN are serving as a powerful example to governments and other stakeholders of how to use the process to reach consensus on the solutions to complex and difficult issues. However, as we work toward completing the transition, we must recognize that the multistakeholder model will continue to face challenges. It is important that we remain dedicated to demonstrating our support and respect for the multistakeholder approach in all the venues where it is used.

To some extent Secretary Strickling was downplaying unresolved questions that could evolve into significant problems. For example, there are clearly portions of the ICANN community who do not see the transition and accountability plans as a final resolution, but merely as a waystation to moving ICANN out of U.S. jurisdiction. When I advocated in Helsinki that ICANN's U.S. incorporation be enshrined in a Fundamental Bylaw during the course of WS2 there was vigorous pushback from some quarters. As I wrote back in May:

[E]ven as the transition draws closer, ICANN's continued status as a non-profit corporation subject to U.S. law — its jurisdictional locus — is rapidly replacing the IANA contract as the new focus for displeasure by those who would have ICANN relocate to another jurisdiction — or even be transformed into a multilateral international intergovernmental organization (IGO), an outcome specifically prohibited under NTIA's approval criteria. The resolution of this extended debate will have profound ramifications for the future viability of the MSM of Internet Governance (IG), as well as for Internet speech free from governmental interference exercised from the top level of the domain name system (DNS). Until this matter is resolved with finality it will remain a scab to be constantly picked at, always threatening to become a festering sore on the body politic of IG.

Indeed, during the panel discussion that followed Secretary Strickling's remarks, one speaker opined that if the IANA transition marked ICANN's "Constitutional moment", the unresolved corporate jurisdictional question could become for it what the unresolved issue of slavery became for the United States — a cause of eventual civil war.

Nonetheless, with the goal line is sight, NTIA is clearly pressing for transition completion on October 1st. The strong language of Secretary Strickling's remarks may also be motivated by a sense that NTIA now has the upper hand, given that the likelihood of an extended appropriations freeze preventing a transition in fall 2016 is increasingly doubtful. Last week the Washington Post reported:

Any chance Congress had this year of smoothly completing work on its annual spending bills is now all but dead, leaving Republican leaders to grapple with how to avoid a contentious fight in the weeks before the election over how to avoid the threat of a government shutdown… Republicans are now debating how long a stop-gap spending bill they need to move before the end of the fiscal year on Sept. 30 should last. Congress goes on a seven week recess after this week and will return after Labor Day.

That view was buttressed by a story in the Wall Street Journal:

Heading into this election year, Republican leaders pledged the GOP-controlled Congress would aim to do at least one thing: pass spending bills on time, without a lot of drama...But as Congress enters its last week in session before a seven-week break through Labor Day, the two chambers have yet to pass a single spending bill through both chambers....Congress will still have a few weeks in September to try to pass spending bills before the government's current funding expires on Oct. 1. Most likely, lawmakers will be forced to pass a short-term spending bill keeping the government running through the election, likely until the end of the year or the first quarter of 2017.

This Congressional spending impasse is directly related to the fate of the IANA transition. The statutory language preventing NTIA from completing the transition expires at the end of FY 2016, which is one second before midnight on September 30th. One second later, at midnight on October 1st, NTIA will be free to hand off the IANA functions to ICANN, assuming that ICANN has completed its remaining pre-transfer obligations.

Prior to the summer recess the House passed a Department of Commerce appropriations bill extending the transition freeze for a year, but the Senate has not followed suit and the prospects for stand-alone DOC funding legislation now appear slim to none. In addition, the language of the FY 2016 freeze was written in a way that a simple FY 17 Continuing Resolution will not carry the freeze language forward into the new fiscal year; it would take an additional explicit provision being grafted on to the C.R. for the transition freeze to be extended. While that's not impossible, it would be a heavier lift in a hyper-partisan Presidential election year.

Speaking of partisan politics, on July 12th it was reported that the 2016 draft GOP Platform blasts the Administration's transition plans, stating,

The survival of the Internet as we know it is at risk… [President Obama] unilaterally announced America's abandonment of the international Internet by surrendering U.S. control of the root zone of web names and addresses. He threw the Internet to the wolves, and they — Russia, China, Iran, and others — are ready to devour it… [Republicans] will therefore resist any effort to shift control away from the successful multi-stakeholder approach of Internet governance and toward governance by international or other intergovernmental organizations

The breakdown of the appropriations process and the failure of "test drive" proponents to provide a detailed blueprint for accomplishing a soft transition argue in favor of the IANA transition proceeding on October 1st. But when members of Congress return in September political passions will be running high, and opponents of the transition may well attempt a Hail Mary play — with NTIA ready to go all out to break it up and push the transition across the finish line. We'll find out who prevails in late September.

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. Visit Page
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Final IANA and Internet Language of GOP Platform Philip S. Corwin  –  Jul 19, 2016 8:01 AM PDT

Just after this article was published the Republican party adopted its 2016 Platform. The full text is available here.

The language relating to the IANA transition can be found at p. 25 —

Protecting Internet Freedom The survival of the internet as we know it is at risk. Its gravest peril originates in the White House, the current occupant of which has launched a campaign, both at home and internationally, to subjugate it to agents of government. The President ordered the chair of the supposedly independent Federal Communications Commission to impose upon the internet rules devised in the 1930s for the telephone monopoly. He has unilaterally announced America's abandonment of the international internet by surrendering U.S. control of the root zone of web names and addresses. He threw the internet to the wolves, and they — Russia, China, Iran, and others — are ready to devour it. We salute the Congressional Republicans who have legislatively impeded his plans to turn over the Information Freedom Highway to regulators and tyrants. That fight must continue, for its outcome is in doubt. We will consistently support internet policies that allow people and private enterprise to thrive, without providing new and expanded government powers to tax and regulate so that the internet does not become the vehicle for a dramatic expansion of government power. The internet's independence is its power. It has unleashed innovation, enabled growth, and inspired freedom more rapidly and extensively than any other technological advance in human history. We will therefore resist any effort to shift control toward governance by international or other intergovernmental organizations. We will ensure that personal data receives full constitutional protection from government overreach. The only way to safeguard or improve these systems is through the private sector. The internet's free market needs to be free and open to all ideas and competition without the government or service providers picking winners and losers. (Emphasis added)

Additional Internet-related language can be found at p.54 —

Confronting Internet Tyranny Internet firewall circumvention and anticensorship technology must become a national priority in light of the way authoritarian governments such as China, Cuba, and Iran restrict free press and isolate their people limiting political, cultural, and religious freedom. Leaders of authoritarian governments argue that governments have the same legal right to control internet access as they do to control migrant access. A focus on internet freedom is a cost-effective means of peacefully advancing fundamental freedoms in closed and authoritarian societies. But it is also an important economic interest, as censorship constitutes a trade barrier for U.S. companies operating in societies like China with advanced firewall protection policies. A Republican administration will champion an open and free internet based on principles of free expression and universal values and will pursue policies to empower citizens and U.S. companies operating in authoritarian countries to circumvent internet firewalls and gain accurate news and information online.

The direct attack on the President, and the pledge that the "fight must continue" against the IANA transition, may foreshadow a confrontation between Congress and the Administration in September.

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