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2014-08-17

ICANN, IANA, US Government, Internet Stewardship

The US Department of Commerce's NTIA really had no choice once the Snowden revelations were known--among many things the world learned was that the US government took Syria offline, corrupted routers, breached networks, and worldwide violated individuals' privacy--leaving a perception globally that the US government itself (NSA et al) is one of the biggest threats facing the internet. And after ICANN had signaled its intention in February, 2014, to create a "parallel legal structure" in Switzerland, the timing of the NTIA announcement was only accelerated (the NTIA decision, by that time, had already been made or was inevitable). Interestingly, and thankfully, the US government never claimed "ownership" of the internet (hence no legislative approval is required to transition the "IANA functions") but at most, exercised a "stewardship" role, most of which had been delegated to ICANN by contract with the US Department of Commerce. Therefore we now have the enduring principle that the internet is not something to be "owned" by any government or corporation, and that any authority exercised in reference to the internet is proper only when exercised in accordance with already established stewardship principles and fiduciary standards.

NSA Monitoring Practices Face Stiff Opposition | Statista: Infographic: NSA Monitoring Practices Face Stiff Opposition | Statista

So where do we go from here?

ICANN President and CEO Fadi Chehadé: "The function which the U.S. has today, which is a very minimal function, of oversight" [will be] "passed on to ICANN through its multistakeholder accountability mechanisms." [Characterizing the U.S. role as one of stewardship, he observed], "It is time for the U.S. to consider that the stewardship is ready to be passed to the stakeholders, as it has always envisaged."(source: If the Stakeholders Already Control the Internet, Why NETmundial and the IANA Transition?)

There are many problems and issues yet to be sorted out. Here are just 2--#1: ICANN, at present, really doesn't have ANY effective "multistakeholder accountability mechanisms"--ICANN, by virtue of its legal structure (a California non-profit corporation with no membership), really acts top-down, by and through its own self-selected Board of Directors, to whom it is solely accountable (other than that US Department of Commerce "oversight" which has been almost non-existent)--which is why we hear of GAC advice etc.,-- the various "stakeholder groups" within ICANN are in an advisory capacity only to the Board of Directors which makes ALL final decisions, none of which are really reviewable by the stakeholders nor any other group or entity (even the US Department of Commerce has taken a "hands off" approach).

#2 How can the global internet community continue to allow a California non-profit corporation (chosen solely by the US government), with no membership and a self-selected Board of Directors, have total control and authority over the global internet DNS, including root zone and IANA functions? ICANN has already admitted in a legal filing in a US Court, that the safety and security of ccTLDs of all the nations of the world is dependent upon the US government having its IANA oversight pursuant to its contract with ICANN. Once the US government is "out of the picture" then any American lawyer can attach (through US legal processes) any ccTLD in the world? This is unacceptable.

So here is the reality as I see it--(1) there is really only one nation in the world currently equipped, legally and structurally, going forward, to be the host nation for whatever emerges as the global internet DNS and root zone authority (or authorities)--Switzerland [if you do not understand why Switzerland, start by reading this by Dr. Richard Hill.] In this regard, Fadi Chehadé et al were actually on the right track back in February. (2) The legal structure(s) for both the IANA functions and other functions performed currently by ICANN need to be reviewed, discussed, negotiated, and changed. In this regard, the French Senate report and Just Net Coalition proposal are on the right track.

Therefore, a word to the wise: the odds of things in the world of internet governance staying the same as they have been, are very slim. And at this point, the continuing launch of hundreds of new gTLDs is little more now than a nuisance and distraction, or complication, to the serious and important work of the IANA functions transition and ICANN accountability processes [and I bet Fadi et al wish they had the new gTLDs decision to do over again (not that they would ever admit it), or that ICANN had waited or at least scaled back the new gTLDs as the FTC suggested in 2011].

So I will look forward, and make a few more suggestions in addition to what I had previously proposed:

1. ICANN should move prudently (as part of, or as an outcome of, its ongoing processes on accountability and IANA) to reincorporate under Swiss law with immunity as a recognized international organization [Dr. Hill, supra, can give you the particulars]. The membership of the new ICANN would be all domain name registrants (see Just Net Coalition proposal, supra), who along with various advisory bodies inclusive of the entire global internet community, would constitute an ICANN General Assembly.

2. Pursuant to the foregoing, ICANN should transition its global headquarters to Geneva (which will also serve as the regional hub for Europe, Africa, and the Middle East), maintain its Singapore hub for Asia (including Australia and New Zealand), close its Los Angeles and Istanbul offices, and open a regional hub for the Americas in Miami.

3. ICANN should formally recognize and acknowledge, at a minimum, the legacy gTLD .com (and perhaps .net and .org also) as a fully regulated gTLD, in the public interest, including limitations on registration and renewal fees beyond November, 2018, by virtue of its market dominance and the exclusive monopoly that was granted in perpetuity to its registrar Verisign.

4. All technical functions including the "IANA functions," should be separated from ICANN into a separate IANA--"Internet Assigned Numbers Authority"--operating free from all governmental oversight or interference, with full immunity under Swiss law, governed by Trustees selected by ICANN, the technical community (IETF et al), gTLD registrars, and ccTLD registrars.The authority of the new ICANN and the new IANA should be recognized and ratified by a new international treaty setting forth the governing principles for the stewardship roles of IANA and ICANN, respectively, over the internet. Here the US government will have the leverage to help establish, in perpetuity, principles for internet freedom in return for "letting go."

5. Finally, there should be a review/appeal process and authority (which should include government representatives) for ICANN decisions, along the lines suggested by the French Senate Report.

--John Poole, Domain Mondo