Last week, the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) announced yesterday that the IANA transition 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.
However there have been fears about what the untested model will present to the unbroken internet system, these reservations have been expressed not only by stakeholders but also the US senators led by the U.S. Sens. Ted Cruz (R-Texas) who have termed the NTIA announcement endorsement that it has violated federal law by undertaking preparations to give the Internet away to foreign governments.
Cruz, Lankford, Lee and Duffy said. “This is the latest step in a troubling series of steps that the administration has taken to relinquish its responsibilities, and it should send a concerning message to every American. If the United States relinquishes its supervision of the Internet—which it has nurtured from inception to become the greatest source of information in human history—authoritarian regimes could try to undermine the new system of Internet governance and thereby threaten free speech around the world. Congress must enact the Protecting Internet Freedom Act and continue to fight for a free Internet.”
Paul D. McGrady of Winston & Strawn LLP writing exploring the concerns for businesses in his
blog highlighted several issues as listed below on why you need to care about this transition proposal
- The plan enhances the role of governments who participate in ICANN through the Government Advisory Committee (GAC). The GAC can now issue “consensus advice” that the ICANN Board is obligated to take unless the Board rejects it by a 60% vote. There are no guardrails on the timing of the advice or the issues upon which the GAC can opine. If the GAC decides to advise ICANN to do something that harms your business, and the ICANN Board does not have the political strength of will to rejected it, you are out of luck. Since ICANN is a monopoly, you do not have another provider to whom to turn to purchase services.
- Expect challenges to ICANN’s authority to make policy. ICANN can no longer rely on the United States Government’s legitimacy as a backstop to its policy making process. When challenged by a party who is harmed by ICANN policy, all ICANN will be able to refer to is that its legitimacy comes from not having a contract with the United States Government—but that, of course, describes the status of every other person and entity on the planet. ICANN will likely end up in the fight of its life to explain why, absent its contractual connection the United States Government, it should be allowed to choose the winners and the losers in the domain name marketplace.
- Keep an eye on the ICANN Board. Importantly, when the ICANN Board adopted the accountability reforms that came out of the transition planning process, it made those changes contingent on the expiration of the IANA contract. If the ICANN Board really believed that the accountability reforms were needed and beneficial, why wait to implement them (other than to have leverage to ensure that the transition occurs)? If fundamentally the ICANN Board believes that its past behavior, however criticized from time to time, was perfectly acceptable, what motivation would they have not to resist implementation of the accountability enhancements when the rubber hits the road post-transition? The United States Government will no longer be in the position to insist that they do.
It is important to note that ICANN has not been able to fully convince the multistakeholders that it could transparently and independently handle matters to do with GAC powers and advice, the Board which has in many cases accused of conflict of interest.
