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The IANA Transition's Terrible, Horrible, No Good, Very Bad Day

Philip S. Corwin

Thursday, September 8, 2016 was a terrible, horrible, no good, very bad day for the prospects of the IANA functions transition being completed by October 1, 2016. Indeed, that same date — but in 2017 — may be the earliest that the handoff from NTIA to ICANN can be completed, given what last Thursday.

The day began with the announcement that Sen. Ted Cruz would be making his first Senate floor remarks since exiting the Republican Presidential race, and that the talk's focus would be a continuation and escalation of his long-standing opposition to "Obama's Internet giveaway". Shortly after 11 am, Sen. Cruz began speaking from his Senate desk, declaring:

In 22 short days, if Congress fails to act, the Obama administration intends to give away control of the Internet to an international body akin to the United Nations. I rise today to discuss the significant, irreparable damage this proposed Internet giveaway could wreak not only on our nation, but on free speech across the world.

ICANN is of course a multistakeholder organization led by the private sector, technologists and civil society, in which governments have only an advisory role — and the whole aim of the transition is to dilute and deflect global support for transferring ICANN's functions to the ITU or a new UN agency through U.S. relinquishment of its remaining vestigial relationship to the DNS-coordinating organization. But Sen. Cruz clearly does not share that perspective.

Continuing his remarks, Sen. Cruz veered from eloquent homage to the permission-less innovation abetted by the Internet, to questioning the ties between former ICANN CEO Fadi Chehade and China's World Internet Conference, then raising concerns about whether ICANN will depart U.S. jurisdiction and the impact of that potential move on uncensored access to information, and finally asserting again that the IANA functions are U.S. government property requiring an affirmative Congressional vote for any transfer to be valid. Wrapping up, in extemporaneous remarks not in his prepared statement, he compared the proposed IANA transition to President Jimmy Carter's return of the Panama Canal to the nation it transverses — although those who disagree with the Senator might point out that the predicted Russian-Cuban takeover of the Canal Zone never came to pass, and that another three decades of U.S. colonial presence in Latin America could have been quite counterproductive.

Overall, while some of Sen. Cruz's stated concerns cannot be dismissed out of hand, others seem far-fetched. Nonetheless, those views have significant support among conservative groups constituting a key portion of the Republican base in a hyper-partisan Presidential Election year. It was just one month ago that more than a dozen such organizations sent a letter to Congressional leaders that not only requested an extension of the IANA spending freeze, but also urged the House of Representatives to authorize Speaker Paul Ryan to initiate litigation against NTIA for allegedly violating the current appropriations ban by engaging in transition preparation planning. The fact that the House is unlikely to authorize such litigation only makes it more likely that it will placate these organizations by at least extending the spending freeze.

And Sen. Cruz will be taking further steps to derail the transition this Wednesday, September 14th at a hearing on "Protecting Internet Freedom: Implications of Ending U.S. Oversight of the Internet" in the Senate Judiciary Committee's Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, which he chairs. While the witness list has not yet been released, it is standard practice that it will feature a majority of speakers who share the Chairman's misgivings.

While Sen. Cruz's floor statement and upcoming hearing constitute compelling political theater, of greater import is that within hours after he spoke the four Republican Chairmen of the Senate and House Commerce and Judiciary Committees dispatched a letter to Attorney General Loretta Lynch and Department of Commerce Secretary Penny Pritzker in which they requested that the Administration address the multiple questions they raise in the letter — and reconsider the Administration's plan to transition the IANA functions on October 1st. The Commerce Committees oversee NTIA's ICANN stewardship, while the Judiciary Committees have jurisdiction over antitrust and trademark protection. Most notable was that Commerce Committee Chairman Sen. John Thune, who had previously stayed conspicuously on the fence regarding the transition, has now joined the delay caucus.

Specific concerns cited by the four Chairmen included:

  • ICANN staff accountability, particularly in the aftermath of the recent and very critical IRP findings regarding the Dot Registry new gTLD applications
  • Unresolved jurisdiction questions being addressed in the Work Stream 2 (WS2) accountability process
  • ICANN's post-transition antitrust status
  • Whether the IANA functions constitute government property, the relinquishment of which requires affirmative Congressional approval

Overall, the letter indicates that, while unstated, the signatory Chairmen would not object and would likely encourage an extension of the current appropriations freeze on completing the IANA transition being extended into FY 2017, if the Administration does not voluntarily commit to defer the transition. It is also notable that at least one of the issues raised — WS2 resolution of remaining jurisdiction issues — cannot be resolved this year, as the timeline of the ICANN community subgroup addressing that matter does not project completing a report and recommendations until spring 2017 at the earliest. That fact alone might be used to bolster arguments for a full year transition delay — and post-election political considerations boost that likelihood as well, as discussed later in this article.

This evolving scenario is consistent with thoughts I published in May:

It is most unfortunate that WS1 did not resolve the critical matter of ICANN jurisdiction. The only way to ensure that ICANN does not devolve into an IGO is to enshrine ICANN's permanent status as a California non-profit in a Fundamental Bylaw during the course of WS2. That would not only be consistent with one of NTIA's key principles but is the only means to assure that business, civil society, and the technical and academic sectors remain the stakeholders in charge of the critical root zone functions — rather than have them fall under the sway of governments, with all the dangers that would accompany a future transition of ICANN's status from the MSM to an IGO.

Since sharing those thoughts I spoke at a Work Stream 2 gathering during the ICANN 56 Helsinki meeting in late June and advocated adoption of such a Fundamental Bylaw — and was accused by some in the audience of inciting insurrection. Given that level of pushback, it is quite possible that all WS2 will accomplish is kicking the can of ICANN's organizational jurisdiction further down the road, a deferral that will do little to assuage Congressional concerns.

Finally, before Thursday ended, two right-of-center think tanks — the libertarian TechFreedom and the conservative Heritage Foundation — released a 24-page, heavily footnoted white paper, titled "ICANN Transition is Premature – Unanswered Questions Require an Extension". That treatise calls for a delay in the transition and a "test drive" of it and the new measures designed to bolster ICANN's accountability to its community before the U.S. permanently relinquishes its remaining control. The Introduction makes their summary case:

Administration officials have stated repeatedly that "it is more important to get this issue right than it is to simply get it done." However, as we near the end of President Obama's second term, it is hard not to conclude that the Administration has become more concerned with getting this done right now than in getting it right. We wonder because of the many serious concerns surrounding the Transition that remain unresolved even as the Administration appears dead-set on moving forward regardless of the potential consequences.

We worry that approving the Transition prematurely will set the multi-stakeholder up to fail. We fear that governments will gain new influence over the Internet, that Internet freedom will suffer, and that the ICANN leadership (CEO and staff) will continue its troubling pattern of cavalierly ignoring its bylaws and procedures while the ICANN Community proves too fractious to hold the leadership accountable.

What's needed now is a "test drive" — a trial period of a year or two in which the U.S. withdraws and allows the new ICANN to operate autonomously, but with the possibility of reasserting its traditional role if unforeseen problems arise, if ICANN resists additional reforms, or if the multistakeholder community determines that the new bylaws or governance structure are insufficient to hold ICANN accountable.

Regardless of whether one agrees with the authors' conclusions, this white paper adds intellectual heft and a ready catalogue of documented concerns that will aid transition opponents in the closing days before pre-election adjournment as Congress fashions a Continuing Resolution to fund the government into the first part of FY 17. And this will add to the pressure on Republican Congressional leaders from conservative base groups to include a continuation of the transition freeze in the CR that must be passed by September 30th.

I have previously explored the notion of a "test drive' of the IANA transition and described the difficulty of evaluating the new ICANN accountability measures while the U.S. government retains intervention authority. Back in May a good faith effort might have fashioned a practical means toward this end; as I wrote then:

If NTIA were to simply extend its current contract with ICANN, that could preclude ICANN from entering into new contracts with the separate PTI established to handle the IANA functions, and with VeriSign for Root Zone Management (RZM--which the company presently does under contract to NTIA); resulting in a failure to test these new arrangements, as well as the PTI oversight role of the Customer Standing Committee (CSC).

So with the blunt instrument of an IANA contract extension, you'd get only a partial test of the new accountability measures, and likely none at all of the revised and fundamental IANA functions arrangement. However, it might be possible to design a more sophisticated testing arrangement in which NTIA surrendered its current middleman role of reviewing ICANN's proposed Root Zone changes before authorizing VeriSign to implement them. That would permit ICANN, PTI and VeriSign to wholly assume the IANA functions, yet could reserve NTIA back-up authority to intervene against Board or EC actions that it viewed as a fundamental threat to the DNS or as jeopardizing the security, stability and resiliency of the Internet. But creating such an arrangement in the current political atmosphere and the limited time remaining until September 30th could prove a daunting task.

So far as I know the task was never attempted and now it is too late — not enough time and too close to the election — to even try to fashion such an arrangement.

A day after the terrible day for the transition, on September 9th, ICANN published its own short white paper, "Answering some of your questions on the stewardship transition". It addresses eleven concerns raised by transition skeptics, and may prove useful for transition proponents. But it is too little, too late, so far as four key authorizing committee Chairmen are concerned, and one wonders what efforts ICANN's own lobbyists made in recent months to detect and deflect these unfolding events.

Earlier last week, prior to the September 8th anti-transition trifecta, tech industry lobbyists and other transition boosters were called to a meeting at the Department of Commerce to discuss the situation. Reportedly, NTIA was asked whether, if in the face of a freeze extension, it would seek to find a way to complete the transition that arguably did not involve the use of appropriated funds. In response, attendees were told that, for a variety of considerations, Congress' will would be respected if the freeze was extended.

The prospect of a Presidential veto threat over a transition delay seems even more remote. Besides, such a move could be counterproductive, elevating an issue that is still off the radar for most voters to the front pages and trending news feeds, and possibly generating more transition opposition than support. It is far easier to communicate concern about an "Internet giveaway" than to explain how the transition will supposedly build support for the obscure multistakeholder model. Some tech lobbyists are likely up on Capitol Hill this week arguing against further transition delay, but given Silicon Valley's perception as a Democratic blue zone their message is unlikely to overcome the calls for delay issuing from Republican red advocacy groups.

While nothing is final until the text of the CR is unveiled, last week's events have substantially boosted the probability that it will include an extension of the IANA transition funding freeze. There is clear evidence of a coordinated action between Congressional leaders and grassroots conservative groups toward that end. Another brick was put in the wall over the weekend, when long-serving Sen. Orrin Hatch, a former Chair of the Judiciary Committee and a member of the Cruz Subcommittee, joined the delay chorus with a statement that, "Charging ahead with the transition now could undermine internet freedom."

The natural follow-up question is whether that IANA freeze will be further extended when Congress reconvenes post-election, likely in a lame duck session stretching from mid-November through early December, and hammers out an appropriations package for the remainder of FY 17.

Unfortunately for transition backers, the outlook there is equally bad. Regardless of what happens on Election Day, Republicans will retain the majority in the Senate and House until January 1. Conservative advocacy groups will remind them that the factors that argued for a delay in October have not been resolved in the short intervening timespan. If Hilary Clinton is elected President, Congress will likely extend the freeze to deny a late term win to President Obama and deliver a problem to greet her new administration that, at a minimum, be used as a future bargaining chip. If Donald Trump wins, they will almost surely extend it so that his Administration can permanently block this transfer of DNS control — or at least make the rest of the world "pay" for America's Internet.

Thus, a freeze extension now most likely means that it stays in place until October 1, 2017. The transition could finally get a green light then — if Mrs. Clinton has been elected and favors its completion, and if the Democrats have at least gained Senate majority control and thereby far greater bargaining leverage on the FY18 funding bill. Absent those factors, the transition outlook may be very bad indeed.

This is all quite unfortunate from the perspective of those who believe that a transition delay will garner resentment toward the U.S. and erode support for the MSM, increasing the pressure for eventual UN takeover of DNS coordination. Yet this was all quite predictable once the final decision was delayed until a Presidential election year, in large part due to extended do-overs in the process of hammering out accountability mechanisms that resulted from objections from the ICANN Board. In particular, one year ago the Board said that it would rather see no transition take place than accept the membership model initially fashioned by the ICANN community; creating the substitute designator model took many more months of effort. The unintended consequence of that delay appears to be a halt to the transition process as it is caught up in U.S. politics, with the main question being whether this is just a temporary setback or a fatal blow.

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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