[AfrICANN-discuss] Relinquishing IANA Would Be a Mistake for NTIA

[Anne-Rachel Inné]

http://www.circleid.com/posts/relinquishing_iana_would_be_a_mistake_for_ntia/

Relinquishing IANA Would Be a Mistake for NTIA
By R. Shawn Gunnarson


In comments to the U.S. Government, ICANN sought to convince the
National Telecommunications and Information Administration (NTIA) to
relinquish its oversight of the Internet Address and Number Authority
("IANA") functions. At its heart, ICANN's presentation is a plea for
NTIA to declare the privatization of DNS management finished. For
several reasons, ICANN's plea should be refused.

ICANN notes that "[i]t was anticipated that [it] would perform the
IANA functions pursuant to a contract with the DOC on a transitional
basis only to ensure the security and stability of the Internet" and
it complains that "[a]lmost 11 years later, the White Paper's stated
goal of transitioning the IANA functions to the private sector remains
unfulfilled."1 It points to the "relatively short transition period"2
identified in the White Paper and asserts its understanding that
"[o]nce ICANN was firmly established, the DOC would fully transfer the
management of these [IANA] functions to the private sector."3

ICANN omits crucial details from the White Paper, which also stated
that "the U.S. Government should end its role in the Internet number
and name address system in a manner that ensures the stability of the
Internet."4 Because the United States concluded that "it would be
irresponsible to withdraw from its existing management role without
taking steps to ensure the stability of the Internet during its
transition to private sector management," the government determined to
"continue to participate in policy oversight until such time as the
new corporation was established and stable."5

ICANN also neglects to mention that other aspects of the White Paper
did not work out as planned either. It was also anticipated that
"members of the Interim Board would not themselves serve on the Board
of Directors of the new corporation for a fixed period thereafter."6
But more than one member of the interim board continued to serve
beyond the first election in November 2000.7 And it was contemplated
that "[m]anagement structures should reflect the functional and
geographic diversity of the Internet and its users."8 That goal
remains an aspiration some 13 years after ICANN's incorporation. If
these elements of the White Paper were not fulfilled as anticipated,
it is difficult to see why the government is bound by a timeline for
completing the DNS Project that was conceived when ICANN did not
exist.

But the real answer to ICANN's complaints lies with a series of
agreements that ICANN entered with the United States, beginning with
the original Memorandum of Understanding,9 in which the U.S.
Department of Commerce recognized ICANN as the organization that would
carry out the DNS Project. The U.S. Department of Commerce's general
counsel testified before Congress that the MOU "did not confer
immediately upon ICANN responsibility for domain name system
management… Obviously if the project is not successful, that
transition of responsibility will not occur."10

>From the outset of the DNS Project, it was clear that ICANN would have
to earn the trust of the community its decisions affect. Only then
could the government responsibly "withdraw from its existing
management role."11 ICANN's performance under the Affirmation of
Commitments suggests that that moment has not yet arrived.

ICANN characterizes the Affirmation of Commitments as a document in
which the United States "relinquished its oversight role on the basis
that 'a private coordinating process, the outcomes of which reflect
the public interest, is best able to flexibly meet the changing needs
of the Internet and of Internet users.'"12 It further describes the
Affirmation as "ending the exclusive oversight of ICANN and further
institutionalizing ICANN's accountability to the global Internet
community."13

But the NTIA has said that ICANN is not living up to its obligations
under the Affirmation.14 Assistant Secretary Strickland expected that
under the Affirmation "ICANN would make significant improvements in
its operations" and yet "]o]ver a year later ... those improvements
have yet to be seen."15

ICANN and the NTIA see the Affirmation from opposite perspectives.
ICANN believes that the government "relinquished its oversight role"
by entering the Affirmation, and the NTIA believes that ICANN is
failing to meet its obligations under it. However one interprets this
conflict, it is hardly an auspicious moment for the United States to
declare the DNS Project complete. Even if transitioning all of the
IANA functions to ICANN were the right thing to do, it is at least
prudent to wait to see how ICANN implements the final recommendations
of the Accountability and Transparency Review Team. ICANN should be
held to its commitments under the Affirmation as minimal standards of
conduct for an organization with serious global responsibilities.

Similar reasons counsel against ICANN's proposed "narrowing" of the
future IANA framework, by removing from NTIA oversight the port and
protocol parameter registry functions, the administration of .arpa,
and any new technical functions like RPKI.16 Only the continued
strengthening of ICANN as a multi-stakeholder institution will produce
the "global confidence"17 that ICANN wants to pursue. Until then,
reducing the NTIA's oversight will more likely increase uncertainty
over ICANN's stewardship of the Internet DNS than reassure the
Internet community of the Internet's safety and stability.

ICANN likewise argues that "incorporating the principles of
transparency and accountability into the next framework would enhance
global confidence in the performance of the IANA functions."18 By
this, ICANN means to "impose transparency obligations on all parties
to the agreement,"19 permitting ICANN to publish each step of its
activities in administering root zone requests and requiring NTIA to
do the same.20

This proposal underscores the deep confusion with which ICANN
approaches the issue of accountability. It tends to use the words
"transparency and accountability" as a pair of vague buzzwords rather
than as distinct and separately meaningful concepts. As its proposal
illustrates, ICANN tends to treat transparency as a synonym or
substitute for accountability. But disclosure isn't accountability.
While ICANN should be applauded for any improvement it makes in
transparency, accountability is a separate matter.

Unfortunately, ICANN tends to resist accountability.21 In fact, its
comments on the IANA functions contract argue against the
accountability of a contractual relationship, preferring instead more
"flexible" arrangements.22 Such resistance is unsurprising given
ICANN's recent legal position that "the board cannot empower any
entity to overturn decisions or actions of the board."23 Its
unwillingness to accept formal accountability is worrisome. Already it
is causing international support for the private sector model of DNS
management to erode.24

In light of ICANN's struggles to perform its commitments under the
Affirmation of Commitments and its resistance to formal
accountability, NTIA's continued oversight of the IANA functions is
indispensable. ICANN's pleas to reduce or eliminate the NTIA's role
should be rejected. Internet users are better served by NTIA's efforts
to act as ICANN's contractual partner than by an arbitrary decision to
declare the DNS Project completed. When ICANN earns institutional
confidence by more reliably matching its actions with its ideals, the
NTIA may reasonably consider whether to turn over the IANA functions
unconditionally.

1 ICANN, Request for Comments on the Internet Assigned Numbers
Authority Functions 3 (March 25, 2011) ("ICANN Comments") (footnote
omitted).

2 Id.

3 Id.

4 United States Dep't of Commerce, Nat'l Telecomm. and Inform. Admin.,
Management of Internet Names and Addresses, 63 Fed. Reg. 31741, 31749
(June 10, 1998) ("DNS White Paper").

5 Id. at 31743-44.

6 Id. at 31750.

7 See http://www.icann.org/en/general/board.html.

8 DNS White Paper at 31749.

9 Memorandum of Understanding Between the U.S. Department of Commerce
and Internet Corporation for Assigned Names and Numbers (Nov. 25,
1998).

10 Testimony of Andrew J. Pincus, General Counsel, U.S. Dep't of
Commerce to House Committee on Commerce, Subcommittee on Oversight and
Investigations, Domain Name System: Is ICANN Out of Control?, July 22,
1999, at 15 (Serial No. 106-47).

11 DNS White Paper at 31743.

12 ICANN Comments at 4 (quoting Affirmation of Commitments by the
United States Department of Commerce and the Internet Corporation for
Assigned Names and Numbers, Sep. 30, 2009).

13 Id. at 3.

14 Letter from Lawrence E. Strickling, Assistant Secretary for
Communications and Information, U.S. Dep't of Commerce, to Rod
Beckstrom, President and CEO, ICANN, Dec. 2, 2010, at 1 (expressing
concern at ICANN's "apparent failure ... to carry out its obligations
as specified in the Affirmation of Commitments ....").

15 ICANN Comments at 2.

16 Id.

17 Id. at 7.

18 Id. at 5 (capitalization modified and emphasis omitted).

19 Id.

20 Id. at 5-6.

21 See R. Shawn Gunnarson, A Fresh Start for ICANN, at 13-16 (June 1,
2010); Milton Mueller, Internet Governance Project, ICANN, Inc.:
Accountability and Participation in the Governance of Critical
Internet Resources 3 (Nov. 16, 2009); Thomas M. Lenard & Lawrence J.
White, Technology Policy Institute, ICANN at a Crossroads: A Proposal
for Better Governance and Performance 3 (June 2009).

22 See ICANN Comments at 12 ("To assume that a static contract can
anticipate the requirements of a future and evolving Internet is
unrealistic and will impede rather than improve overall customer
satisfaction.").

23 ICANN, Limitations on Third Party Review of Corporate Board Actions
under California Law, Aug. 31, 2010.

24 See Danish Comments to the Accountability and Transparency Review
Team, Draft Proposed Recommendations, Nov. 23, 2010, at 2; French
Comments to the Draft Proposed Recommendations made by the
Accountability and Transparency Review Team (ATRT), Dec. 3, 2010, at
2; Norwegian Comments to the Draft Proposed Recommendations — The
Accountability and Transparency Review Team, Nov. 30, 2010, at 2.

By R. Shawn Gunnarson, Attorney at Law, Kirton & McConkie