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2016-09-13

IANA Transition's Unanswered Questions Require An Extension?

Do the IANA Transition's Unanswered Questions Require An Extension of the IANA functions contract? "Yes" say Berin Szoka, President of TechFreedom (TechFeedom.org), Paul Rosenzweig, Visiting Fellow at The Heritage Foundation (heritage.org) and former Deputy Assistant Secretary for Policy in the Department of Homeland Security, and Brett Schaefer, Jay Kingham Senior Research Fellow in International Regulatory Affairs at The Heritage Foundation, in a September 8, 2016, white paper entitled ICANN Transition is Premature - Unanswered Questions Require an Extension (link is below), (note: the views expressed in the white paper reflect those of TechFreedom and the individual authors, but not necessarily those of The Heritage Foundation), excerpts:

Introduction:
Is the Internet ready for the U.S. government to give up its historic role as the ultimate guarantor of
Internet governance? Yes, insists the Obama Administration. Global stakeholders — users,
businesses, technical experts and civil society groups — will remain firmly in control, they assure us.

We’re skeptical. But before we tell you why, let’s make a few things clear. We support the multistakeholder model. We do not believe any government should control or own the Internet. We do not oppose the “Transition” — wherein multi-stakeholders would assume the current U.S. oversight responsibilities over the Internet Corporation for Assigned Names and Numbers (ICANN). But we do oppose rushing the Transition before critical questions are resolved. We recommend extending the contract for a year or two to vet the proposal and complete all of the reforms sought by the community.

Administration officials have stated repeatedly that “it is more important to get this issue right than it is to simply get it done.”5 However, as we near the end of President Obama’s second term, it is hard not to conclude that the Administration has become more concerned with getting this done right now than in getting it right. We wonder because of the many serious concerns surrounding the Transition that remain unresolved even as the Administration appears dead-set on moving forward regardless of the potential consequences.

We worry that approving the Transition prematurely will set the multi-stakeholder model up to fail. We fear that governments will gain new influence over the Internet, that Internet freedom will suffer, and that the ICANN leadership (CEO and staff) will continue its troubling pattern of
cavalierly ignoring its bylaws and procedures while the ICANN Community proves too fractious to
hold the leadership accountable.

What’s needed now is a “test drive” — a trial period of a year or two in which the U.S. withdraws
and allows the new ICANN to operate autonomously, but with the possibility of reasserting its traditional role if unforeseen problems arise, if ICANN resists additional reforms, or if the multistakeholder community determines that the new bylaws or governance structure are insufficient to hold ICANN accountable.
. . . .
Here are just the most prominent of our remaining concerns — and why they matter. We start with practical concerns and conclude with legal ones. Here’s a high-level list:
  1. Whatever happens with the Transition, there’s no reason whatsoever to think authoritarian countries like Russia and China won’t try to exert greater control over the Internet and the long-term impact of the Transition on positions of other governments vis-à-vis U.N. governance of the Internet are unknown. 
  2. It is unclear at best whether the multi-stakeholder community has the cohesion and resolve necessary to serve as an effective check on the ICANN Board post-Transition. 
  3. Governments will have more power post-Transition than they do currently, and it is unclear how this will affect ICANN. 
  4. Recent events revealed that ICANN has serious transparency and governance problems, which could make it vulnerable to corruption and abuse. 
  5. The U.S. government’s role is a major reason why the ICANN Board has been willing to accept accountability measures, because the Transition is dependent on their adoption. But a number of important additional reforms will not be completed until after the Transition, and. failing to extend the contract may jeopardize their implementation. 
  6. Substantial questions on ICANN’s jurisdiction, including where ICANN will be headquartered and incorporated and to which laws ICANN will be subject, remain unanswered. 
  7. The U.S. failed to secure legal ownership and control of the .MIL and .GOV domains, which could create national security concerns in the future. 
  8. The new ICANN bylaws may not be in line with California law, which could lead to legal and political challenges. 
  9. If the Transition involves a transfer of property, ending the contract without congressional authorization would violate the Constitution. 
  10. NTIA may have violated a funding prohibition if it fails to extend the contract. 
  11. It is unclear that U.S. antitrust law will actually be an effective remedy (or deterrent) against anti-competitive behavior by ICANN, even the Transition doesn’t change its legal status. Yet foreign antitrust laws could be used strategically to portray ICANN as a cartel, and thus make the case for a shift to U.N. control. 
  12. NTIA may have violated administrative law by failing to adequately consider public comments on the Transition directly, and instead relying on ICANN to do so on its behalf.