Internet Transition Deadline Approaches

• The Commerce Department’s contract with ICANN is set to expire on September 30, which would end the U.S. government’s stewardship of the internet’s address book.
• Critics of the transition warn of foreign government control over the internet and say that transition plan falls short.
• House and Senate committee chairmen have asked the Obama administration to reconsider the planned October transition.

WHAT IS ICANN AND WHAT DOES IT DO?

The Internet Corporation for Assigned Names and Numbers is a nonprofit corporation that was created under a 1998 Memorandum of Understanding with the Department of Commerce. One of ICANN’s roles is to allocate and coordinate IP addresses to allow for internet navigation. This function is known as the Internet Assigned Numbers Authority, and it is effectively the “address book” of the internet.

Under several agreements, the U.S. has maintained oversight and stewardship over ICANN’s management of the IANA internet address book. The current version of the IANA contract is set to expire on September 30, and the Obama administration has announced that it does not plan to renew it. The expiration of the contract will end the U.S. government’s contractual authority over ICANN’s management of IANA functions.

“There remain a number of unresolved matters with regard to accountability, jurisdiction, and antitrust with respect to the proposed transition of the IANA functions to ICANN and the global multi-stakeholder community.” – Sen. Grassley and Sen. Thune, letter to the Obama administration, 09-08-2016

PLANNED TRANSITION

The transition to a purely private IANA function has been planned since ICANN was founded, and U.S. government oversight was initially expected to end by 2000. But the handover has been delayed a number of times. In September 2012, responding to concerns about foreign-government and United Nations control of the internet, the Senate passed by unanimous consent S.Con.Res. 50, which affirmed its “strong commitment to the multistakeholder model of Internet governance.”

In March 2014, the the Department of Commerce’s National Telecommunications and Information Administration announced its intent to begin its withdrawal from ICANN oversight. It asked ICANN and the “multistakeholder community” to put together a proposal for the transition. The stakeholders in this arrangement are generally private sector companies and groups. In its announcement, NTIA stated that the transition proposal must have broad community support and must address four principles:

• Support and enhance the “multistakeholder model”
• Maintain the security, stability, and resiliency of the internet domain name system
• Meet the needs and expectation of the global customers and partners of the IANA services
• Maintain the openness of the internet

NTIA had also said that it would not accept a plan that replaced its role with a “government-led or intergovernmental organization solution,” such as transferring authority to the U.N. The previous deadline for the transition was September 30, 2015, but the administration extended the contract by a year when the transition plan was not ready.

In addition, Congress used the 2015 cromnibus to prevent the NTIA from using funds “to relinquish the responsibility” over IANA functions. This language was also included in the 2016 omnibus spending bill for fiscal year 2016, which ends on September 30, the same day that the current contract with ICANN ends.  

CONCERNS ABOUT THE TRANSITION

Stakeholders have expressed significant concerns about the transition, with many asserting that the transition should be delayed pending further investigation and testing. Experts have cautioned that ICANN’s structure under the current transition plan would enable foreign governments, through ICANN’s Governmental Advisory Committee, to exert power over internet functions. This would potentially jeopardize internet freedom by allowing governments to regulate content. The NTIA has responded that the committee is strictly advisory and asserts that “experts found the prospects for a takeover of ICANN by a single government, a group of governments, or one or more economic actors to be extremely remote.”

People wary of the transition have also said that there should be a precondition that the U.S. would have sole authority over the .mil and .gov domains. ICANN recently sent the NTIA a letter confirming its obligation to notify the U.S. of any “redelegation” requests regarding the .mil, .gov, .edu, and .us domains. In the letter, ICANN also said that it “will not take any action to re-delegate these U.S. Government administered domains without first obtaining express written approval from NTIA.”

Critics have also warned that ICANN’s board will be unaccountable and has already demonstrated poor governance. Some contend that the U.S. Constitution prohibits NTIA from “disposing” of the ICANN contract without explicit congressional authorization, and they have raised antitrust concerns.

Those who do not think that the transition should be delayed have contended that the current transition policy fulfills the NTIA’s four principles. According to the Center for Democracy and Technology, “if there is an unwarranted delay or if the transition does not occur, the multistakeholder model of internet governance could be irretrievably undermined and there would be unprecedented ammunition for those nations that want to see increased intergovernmentalism and state control of the internet.” The group asserts that the “failure to transition would be seen as a license by some governments to assert greater control over the internet and place greater restrictions on its openness,” which would “jeopardize the future of the internet, its role in promoting free speech and human rights, and the significant benefits it can bring to societies and economies across the globe.” 

SENATE ACTIVITY

The ICANN transition has garnered significant attention in the Senate. Most recently, the Senate Commerce Committee held a hearing on the issue in May, and a Senate Judiciary subcommittee will look at it on Wednesday, September 14. The chairmen of the House and Senate judiciary and commerce committees sent a letter to the attorney general and secretary of commerce on September 8, noting the antitrust and constitutional concerns regarding the transition. They urged the administration to reconsider its plans to transition the IANA functions on October 1.

Legislatively, the Commerce Committee reported out S. 1551, the DOTCOM Act, which would require the NTIA to certify that the transition proposal “supports and enhances the multistakeholder model of Internet governance, maintains the security, stability, and resiliency of the Internet domain name system, meets the needs of global customers and partners of the IANA services, maintains the openness of the Internet, and does not replace the role of the NTIA with a government-led or intergovernmental organization solution” before allowing the transition to occur.

No action is required by the NTIA simply to allow the contract to lapse, at which point the transition would take effect. It is unclear whether extending the current funding prohibition on the handover would affect the transition, although the NTIA administrator has implied in past remarks that NTIA would listen to congressional direction on the matter.