NTIA Says Cromnibus Bars IANA Transition During Current Contract Term

By Philip S. Corwin
Philip S. Corwin

The Congressional Internet Caucus held its 15th annual State of the Net conference today at The Newseum in Washington, DC. This is traditionally a start the new year networking and information update day for the capital's technology policy set.

Immediately following the lunch break, at a session titled "Internet Functions in Transition: Is the US and the World Ready?", NTIA head Lawrence Strickling provided the first official Obama Administration reaction to language included in the December 2014 Omnibus Appropriations legislation (dubbed the "Cromnibus") that forbade the NTIA from spending a single penny on transferring the IANA functions contract during fiscal year 2015 (FY 2015). The last day of FY 2015 is September 30, 2015, which exactly coincides with the final day of the current term of the IANA contract, so compliance with this Congressional exercise of its 'power of the purse' would implicitly require some extension of the IANA contract and the current U.S. relationship with ICANN.

In his remarks (full text below), Secretary Strickling extinguished any conjecture that NTIA might seek some loophole to allow the transition to occur during its current term, stating:

The act does restrict NTIA from using appropriated dollars to relinquish our stewardship during fiscal year 2015 with respect to Internet domain name system functions. We take that seriously. Accordingly, we will not use appropriated funds to terminate the IANA functions contract with ICANN prior to the contract's current expiration date of September 30, 2015. Nor will we use appropriated dollars to amend the cooperative agreement with Verisign to eliminate NTIA's role in approving changes to the authoritative root zone file prior to September 30. On these points, there is no ambiguity.

Elaborating, the Secretary also made clear that the legislative language does not, in NTIA's view, require it to "sit on the sidelines", and that "the [ICANN] community should proceed as if it has only one chance to get this right".

Simultaneously, he emphasized that the ICANN community would be provided with the time it required to fashion a comprehensive and workable proposal:

I want to reiterate again that there is no hard and fast deadline for this transition. September 2015 has been a target date because that is when the base period of our contract with ICANN expires. But this should not be seen as a deadline. If the community needs more time, we have the ability to extend the IANA functions contract for up to four years. It is up to the community to determine a timeline that works best for stakeholders as they develop a proposal that meets NTIA's conditions, but also works.

As a practical matter, NTIA's public acknowledgement of the unambiguous nature of the appropriations language may not add a moment to the time required for the IANA transition. It was becoming increasingly clear that the parallel transition and accountability work streams are unlikely to produce a final, coordinated consensus proposal, accompanied by implemented accountability measures including required Bylaws changes, to permit a transition by September 30th.

Indeed, Secretary Strickling may have just added to the time requirements by posing a series of questions to the Community Working Group (CWG) on naming-related functions that indicate that NTIA has serious concerns about the path they are taking. After posing those questions he made clear that NTIA expected answers, declaring, "All of these questions require resolution prior to approval of any transition plan". The CWG has already missed a January 15th target date for delivering a final set of recommendations to the IANA Coordination Group (ICG) and was unlikely to have a final product ready for them until the spring. Providing the "resolution" that NTIA just requested, and making necessary changes to its proposal, could add months to its work.

Bottom line: It now seems inevitable that NTIA will extend the IANA contract term, with the only question being whether it will be a full two year extension or some lesser amount of time. As a full extension would extend the contract into the term of the next President as well as invite international concern over the transition's prospects, NTIA may well opt for an extension in the range of six months to a year.

Here's the text of Secretary Strickling's remarks, with passages referenced above highlighted (source):

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Remarks by Lawrence E. Strickling
Assistant Secretary of Commerce for Communications and Information
State of the Net Conference
Washington, DC
January 27, 2015


As prepared for delivery

I appreciate this opportunity to speak to you at this year's State of the Net Conference. This conference has grown in importance in its years of existence as more and more people understand the importance of ensuring that the Internet remains a platform for innovation, free speech and economic growth.

As we previewed last January, the year turned out to be an important year for Internet governance, bookended by the NetMundial conference in Brazil in the spring and the International Telecommunication Union Plenipotentiary Conference in Korea in the fall. Throughout the year, the United States remained a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model. The successful outcomes at NetMundial and the Plenipotentiary demonstrate that more and more nations are joining the United States in showing their support for this model of Internet governance. They do so not because the multistakeholder model is an end in and of itself, but because it holds the greatest proven potential for promoting both innovation and inclusion.

This year promises to be another critical year for Internet governance, centering in part on efforts to complete the privatization of the Internet domain name system (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. Last March, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community.

We turned to the Internet's stakeholders to drive this transition because we believe businesses, technical experts, and civil society groups are best equipped to continue to set the future direction of the Internet. We believe this transition is critical to preserving and enhancing this model going forward. We are pleased that the community responded enthusiastically to our call to develop a transition plan. Stakeholders have organized two major work streams to develop the overall plan. One is focused on the specifics of the IANA functions themselves and the second is addressing questions of the overall accountability of ICANN to the global community of Internet stakeholders. Both groups are well under way — you will hear first-hand from some of the participants in the panel following my remarks — and are working according to a schedule that would deliver a transition plan to us in the summer.

Today, I would like to answer some of the questions that have arisen in recent weeks about NTIA's role in the transition and then, to pose some questions of our own for stakeholders to consider as they continue their work to develop the plan. We do so in good faith and in appreciation of the hard work of the volunteer community engaged in these discussions

At the outset, let me address the impact of last December's appropriations act on the transition planning process. From the day of our announcement last March, some, including members of Congress, have raised questions and concerns about the transition. We welcome their interest and acknowledge the validity of many of these concerns. We think it is important that questions about the transition be addressed and answered. We also believe that a robust, open and transparent multistakeholder process is the best vehicle for ensuring that result. Nothing in the appropriations act affects the activities of industry, civil society and the technical community to develop the transition plan we called for last March. We expect their work to continue and look forward to its conclusion.

The act does restrict NTIA from using appropriated dollars to relinquish our stewardship during fiscal year 2015 with respect to Internet domain name system functions. We take that seriously. Accordingly, we will not use appropriated funds to terminate the IANA functions contract with ICANN prior to the contract's current expiration date of September 30, 2015. Nor will we use appropriated dollars to amend the cooperative agreement with Verisign to eliminate NTIA's role in approving changes to the authoritative root zone file prior to September 30. On these points, there is no ambiguity.

The legislative language, however, makes it equally clear that Congress did not expect us to sit on the sidelines this year. The act imposes regular reporting requirements on NTIA to keep Congress apprised of the transition process. To meet those requirements, NTIA will actively monitor the discussions and activities within the multistakeholder community as it develops the transition plan. We will participate in meetings and discussions with ICANN, Verisign, other governments and the stakeholder community with respect to the transition. We will continue to represent the United States at the meetings of ICANN's Governmental Advisory Committee.

We will provide informal feedback where appropriate. We are as aware as anyone that we should not do anything that interferes with an open and participatory multistakeholder process. We support a process where all ideas are welcome and where participants are able to test fully all transition options. Nonetheless, the community should proceed as if it has only one chance to get this right. Everyone has the responsibility to participate as they deem appropriate. If, by asking questions, we can ensure that the community develops a well-thought-out plan that answers all reasonable concerns, we will do so.

I have been asked on numerous occasions: "What is the United States looking for in a plan?" I have consistently answered that we are looking for a plan that preserves ICANN as a multistakeholder organization outside of government control which the community develops through an open and transparent multistakeholder process and that has the broad support of stakeholders. No stakeholder or set of stakeholders has a veto over this process whether it be governments, industry or civil society. However, they all need to have a voice, including ICANN leaders, who are stakeholders and community representatives, in helping to inform a proposal that has broad support.

Let me repeat, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution.

In addition, the proposal must maintain the security, stability, and resiliency of the domain name system. The proposal must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.

Now that we are more than ten months past our announcement, it is important to take stock of where this transition process stands. As I mentioned earlier, there are two parallel work streams proceeding at the moment. These work streams are directly linked, and we have repeatedly said that both tracks must be addressed before any transition takes place.

In the first track, the IANA Stewardship Transition Coordination Group (ICG), representing more than a dozen Internet stakeholder communities, issued a call for proposals last fall for each of the three primary IANA functions — protocol parameters, numbering, and domain names — to be developed by the communities and parties most directly affected by each of the primary functions.

Two of the three groups have already finished their draft proposals. The Internet Engineering Task Force, which is shepherding the protocol parameter proposal, finalized and submitted its plan to the ICG on January 6. The five Regional Internet Registries (RIRs), which worked collaboratively in developing the numbering proposal, announced their final plan on January 15. An ICANN Cross Community Working Group (CWG) on the naming related functions released a draft proposal on December 1 and is continuing to work through the comments received in response.

We have taken a look at the December 1 proposal and the ensuing comments and discussion it has engendered. As the CWG on the naming-related functions continues its work to finalize its draft proposal, NTIA would like to offer the following questions for the stakeholders to consider:

  • The draft proposes the creation of three or four new entities to be involved in the naming related processes. Could the creation of any new entity interfere with the security and stability of the DNS during and after the transition? Given that the community will need to develop, implement and test new structures and processes prior to a final transition, can it get all this done in a timeframe consistent with the expectations of all stakeholders?
  • Does the proposal ensure a predictable and reliable process for customers of root zone management services? Under the current system, registry operators can be confident of the timing of review and implementation of routine root zone updates. If a new committee takes up what is currently a routine procedural check, how will the community protect against processing delays and the potential for politicization of the system?
  • In response to the December 1 draft, other suggestions have emerged. Are all the options and proposals being adequately considered in a manner that is fair and transparent?
  • How does the proposal avoid re-creating existing concerns in a new form or creating new concerns? If the concern is the accountability of the existing system, does creating new committees and structures simply create a new set of accountability questions?

All of these questions require resolution prior to approval of any transition plan.

The second process is addressing how to enhance ICANN's accountability to the global Internet community in the absence of the contractual relationship with NTIA. Stakeholders are working through the Enhancing ICANN Accountability Cross Community Working Group (CCWG – Accountability). Early reports indicate the CCWG is making significant progress on an agreement on the definition of the problem, a list of "stress tests", and the specific short term issues that need to be addressed prior to the transition. As we have consistently stated, it is critical that this group conduct "stress testing" of proposed solutions to safeguard against future contingencies such as attempts to influence or take over ICANN — be it the Board, staff or any stakeholder group--that are not currently possible given its contract with NTIA. We also encourage this group to address questions such as how to remove or replace board members should stakeholders lose confidence in them and how to incorporate and improve current accountability tools like the reviews called for by the Affirmation of Commitments.

As both groups continue their work, it is important that the draft proposals are tested and validated. This will give confidence that any process, procedure or structure proposed actually works. It also will help facilitate NTIA's review of the final transition proposal. Finally, the plan must be comprehensive and complete. The proposal needs to address all the functions included in the IANA contract, including management of the .int top-level domain name.

I want to reiterate again that there is no hard and fast deadline for this transition. September 2015 has been a target date because that is when the base period of our contract with ICANN expires. But this should not be seen as a deadline. If the community needs more time, we have the ability to extend the IANA functions contract for up to four years. It is up to the community to determine a timeline that works best for stakeholders as they develop a proposal that meets NTIA's conditions, but also works.

There is a lot for stakeholders to consider. But I am confident that the community will get this right and will come out stronger at the end of the process. We all have a stake in this transition and in ensuring the Internet remains an open, dynamic platform for economic and social progress.

On a final note, as you can see, NTIA has a busy Internet policy agenda, both on the international front and domestically. This is challenging and exciting work. To help us deal with this work load, we have just posted openings for several positions in our Office of International Affairs and Office of Policy Analysis and Development. I encourage you to spread the word. We are looking for bright, energetic folks who are eager to tackle cutting-edge Internet policy issues.

So with that, we can get on to the panel. Thank you for listening.

National Telecommunications and Information Administration
1401 Constitution Ave., NW Washington, DC 20230

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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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