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U.S. Government Accepts IANA Transition Proposal
Posted On June 28, 2016
The U.S. government took a major step toward getting out of the internet oversight business on June 9, 2016, when the U.S. Department of Commerce approved a proposal by ICANN (Internet Corporation for Assigned Names and Numbers) to assume the operation and oversight of the Internet Assigned Numbers Authority (IANA). Since the early days of the internet, there has been a consistent level of U.S. government oversight of IANA functions. The Department of Commerce’s approval follows nearly 20 years of plans and negotiations to end that oversight and pass it on to a global, multistakeholder community. However, concerns that such a community may include authoritarian and other regimes with histories of restrictive practices may lead Congress to intervene.

History of ICANN

Notwithstanding its origins in the 1960s as the U.S.-based and U.S.-funded ARPANET, the internet rapidly grew beyond U.S. borders to become a regional, then global, series of interconnected networks regulated by standards, structures, and protocols designed to allow people to communicate seamlessly. These necessitated a global network of boards, organizations, and task forces to maintain and further develop the internet’s structure and operations. ICANN is the most widely recognized and known organization.

ICANN is an independent, nonprofit corporation with an international board of directors. However, it is based in the U.S., and, critically, since 2000, it has been operating under a series of contracts with the National Telecommunications and Information Administration (NTIA), a division of the Department of Commerce. The contracts give NTIA authority over ICANN’s operation of IANA functions. Those functions, which are critical to the operation of the internet (because they control and regulate its “numerology”), include serving as the central repository for IP protocol name and number registries, coordinating the allocation of IP and Autonomous System numbers to regional internet registries, processing root zone file change requests for top-level domains (TLDs), and maintaining a publicly available WHOIS service with contact information for TLD operators.

Proposals on Internet Oversight

NTIA’s “IANA Stewardship Transition Proposal Assessment Report” describes its oversight of ICANN and its IANA functions as “limited and clerical in nature.” It does not have any role in the “management of Internet numbering resources or Internet protocol parameters functions.” NTIA’s role has been primarily to verify that ICANN follows established policies and procedures in its management of IANA functions. The current NTIA contract runs through the end of September 2016.

The earliest proposals to disentangle the U.S. government from internet oversight date back to a 1997 Clinton administration memorandum that directed the Department of Commerce to privatize Domain Name System (DNS) functions. The effort really kicked into gear in 2014 when NTIA announced its intention to privatize the DNS functions through a “multistakeholder process.” This is, at least in part, a response to a 2012 congressional resolution supporting a “multistakeholder model that governs the Internet.”

NTIA Principles

In being open to privatization, NTIA does impose a series of principles that it requires to be central to any privatization agreement. The first is that the process used to develop the proposal must be “open, transparent, bottom-up, and garner broad, international stakeholder support.” Next, the proposal must “maintain the security, stability, and resiliency of the Internet DNS,” including its decentralized authority structure, its transparency and accountability, and its resistance to data corruption. Third, the proposal must “meet the needs and expectations of the global customers and partners of the IANA services.” Finally, the proposal must “maintain the openness of the Internet,” specifically a “neutral and judgement-free” administration structure over the technical DNS and IANA functions. NTIA also goes on to assert that it “would not accept a proposal that replaces the NTIA [oversight] role with a government-led or an intergovernmental organization solution.”

ICANN put together a number of working groups to develop a proposal in line with these principles. The groups completed their work in February 2016 and delivered the proposal to NTIA. It outlines a series of recommendations that correspond with the NTIA principles, including the creation of a separate, nongovernmental organization that would represent the various stakeholders and would have authority over the ICANN board of directors, as well as the authority to develop and implement strategic planning and to initiate independent reviews.

After an extensive review period, NTIA accepted the proposal as meeting all of its requirements for privatization. NTIA’s complex assessment process included a review by a government agency working group with representatives from more than a dozen federal agencies, such as the Department of Defense, the Department of Justice, the Department of State, the U.S. Department of the Treasury, the U.S. Department of Health & Human Services, and the Department of Homeland Security, as well as the FBI, the United States Patent and Trademark Office (USPTO), and the National Security Council (NSC). NTIA also conducted a review of frameworks for internal control at the recommendation of the U.S. Government Accountability Office (GAO). Finally, NTIA reached out to the private sector by asking experts on corporate governance whether the proposal “reflected corporate governance best practices.”

Reactions to the Proposal

The proposal met with general approval throughout the assessment process, adhering to sound risk assessment and corporate governance principles and meeting NTIA’s requirements of security, openness, considering the needs of global customers, and the absence of a government-led or intergovernmental organization solution. Governments—including the U.S. government—would have access to an advisory committee to provide advice on public policy issues, but it would not have power to unilaterally direct ICANN or its board. Finally, the U.S. would retain ownership of the .gov and .mil TLDs.

The NTIA approval of the privatization proposal was supported by a number of technology companies and trade groups, including key technology players Amazon, Facebook, Google, and Microsoft. The U.S. Chamber of Commerce also showed its support. Describing the plan as providing “the internet with the best path forward for self-governance,” the Internet Association, CCIA (Computer & Communications Industry Association), and the Internet Infrastructure Coalition also display their support.

Concerns have been raised, however, that removing U.S. oversight of ICANN could open up the internet to increased influence from governments such as Russia and China. Notwithstanding the 2012 congressional resolution in support of privatization, ICANN’s proposal has resulted in at least two congressional bills that would prevent NTIA from discontinuing its oversight absent specific congressional approval. In introducing the Protecting Internet Freedom Act, Sen. Ted Cruz (R-Texas) and Rep. Sean Duffy (R-Wis.) argue that the U.S. oversight of ICANN is necessary to protect the internet “from authoritarian regimes that view the Internet as a way to increase their influence and suppress freedom of speech” and that doing away with U.S. oversight will give more than 160 foreign governments increased influence over the internet.

Other commentators point out that having the U.S. get out of the internet supervision business might actually reduce the influence of foreign governments over the internet by taking away the argument that the U.S. government’s oversight compels other governments to pursue similar roles. Techdirt’s Mike Masnick argues that removing the link between the U.S. government and the internet—which he describes as “almost entirely imaginary”—takes away any “useful fodder for a more complete move [by authoritarian regimes] to take over control [of the internet] themselves.”

Barring any action on Cruz and Duffy’s legislation, the NTIA proposal could go into effect by Sept. 30, 2016. Several more technical steps and processes need to take place, and ICANN will submit an updated report to NTIA by the middle of August.

George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. Previously, Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Pike received his B.A. from the College of Idaho, his law degree from the University of Idaho, and his M.L.S. from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

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