ICANN Accountability Meeting, Renewed Congressional Scrutiny Seen Clouding IANA Transition's Path

“We are concerned that NTIA might potentially relinquish ownership” of its oversight of the IANA functions, including the Department of Defense-created root zone file, without giving Congress its constitutional right to approve the transition, Goodlatte and Grassley said in a letter to GAO. Sen. Ted Cruz, R-Texas, and House IP Subcommittee Chairman Darrell Issa, R-Calif., also signed the letter. Cruz placed a hold on the Senate’s version of the Domain Openness Through Continued Oversight Matters Act (S-1551) over his concerns that Congress wouldn’t have a chance to vote on the IANA transition (see 1507200068), while Issa has been a major player in House scrutiny of the transition.

A new GAO review of the transition should focus on whether the termination of NTIA’s contract with ICANN would constitute a transfer of government property and whether Congress has a constitutional role in approving the transition, the congressional Republicans said. The GAO also should determine whether the root zone file and other materials constitute federal property, the Republicans said. “Congress should be made aware of the legal status of the root zone file -- or any other potential government property -- before it makes any final decisions about whether to transfer the government’s Internet oversight functions to a third party,” they said.

Congressional Republicans’ request for a new GAO report on the constitutionality of the IANA transition won’t necessarily mean additional delays to the transition since it’s “not a new issue,” Wiley Rein lawyer David Gross said. “This has been discussed in the past and [NTIA Administrator] Larry Strickling has testified on it before Congress. My hope and expectation is that this should be finished fairly quickly and in a way that will make clear what the answer is.” ICANN is “confident that NTIA possesses the requisite authority to transition its stewardship role over the IANA functions to the ICANN multistakeholder community,” Vice President-Strategic Programs Jamie Hedlund said in a statement. NTIA found in June that the IANA transition doesn’t affect the federal government’s contract with Verisign to operate the root zone file. NTIA had previously indicated to the GAO in 2000 that it wasn’t clear whether legislation would be needed to approve a transfer of control of the IANA transition or the root zone file. NTIA didn’t comment on the request for a new GAO report.

ICANN stakeholders ended their two-day meeting in Los Angeles Saturday without reaching consensus on several controversial issues, including a mechanism for enforcing proposed new ICANN community powers and a proposal to amend ICANN’s bylaws to require the ICANN board to find a “mutually acceptable solution” when the Governmental Advisory Committee provides advice that’s supported by GAC member consensus. ICANN’s board has repeatedly raised concerns about CCWG-Accountability’s proposed single member model for enforcing the proposed new community powers (see 1509030025) and has since proposed its alternate “Multistakeholder Enforcement Mechanism” (see 1509140064). Stakeholders reached a new consensus on some items, including the need to require ICANN to incorporate a binding commitment to human rights principles before the IANA transition can proceed and allowing the ICANN community to vote to remove ICANN board members for cause.

The ICANN board is "hoping very strongly that we are not put into a position of having to make really tough decisions or get into a 'it's that or that' sort of thing" on the sole membership model, board Chairman Steve Crocker said during the Los Angeles meeting's Saturday session. "We will do what is necessary, when it's necessary. We don't want to convey that as a threat, more as a plea." Former Bill Clinton administration aide Ira Magaziner, who has recently been advising CCWG-Accountability, urged stakeholders Saturday to move forward on a consensus. "You have a limited amount of time to get this done” given the Sept. 30, 2016, revised expiration date of NTIA’s contract with ICANN, he said. “As the political season develops next year, something like this, no matter how meritorious and how well constructed, could irrationally get caught up in the political process here and therefore, defeated or put off."

Protracted debates during the Los Angeles meeting resulted in a “difficult meeting,” said Internet lawyer Greg Shatan of Abelman Frayne. “I don’t think we met all of the goals that we had going in and it was illuminating in the sense that it showed us even more clearly where we have work that needs to be done.” Stakeholders began the Los Angeles meeting believing it would focus on understanding all of the concerns raised in public comments on the CCWG-Accountability draft proposal, but the ICANN board’s concerns ended up being the dominant topic, Shatan said. “We’re not communicating as well as we should and I think that is leading to misunderstandings and doubts that shouldn’t exist based on a full understanding of the proposal.” Although the ICANN board’s concerns received the most debate, “I don’t think we fully met the board’s concerns head-on,” Shatan said.

The Los Angeles meeting was “a large step backward that will introduce several months of delay,” said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. The ICANN board appears to be intractably opposed to the single member enforceability model, which means CCWG-Accountability may “have to go back to the drawing board and figure out what to do” before ICANN’s planned Oct. 18-22 meeting in Dublin, Corwin said. The Dublin meeting had previously been seen as the likely finale to planning for the CCWG-Accountability proposal and ICANN’s IANA transition proposal, but it now appears all but certain that the CCWG-Accountability proposal won’t be ready for approval votes by ICANN’s five chartering organizations by that time, Corwin said. The Los Angeles meeting “hasn’t improved the relationship between the community and the board,” he said. “It’s going to take several months to recover.”

ICANN officials are publicly more positive about the future of the CCWG-Accountability proposal, with ICANN Vice President-Business Engagement Chris Mondini telling us he believes the Los Angeles meeting resulted in strong progress following “very frank and open discussions” that are “necessary and a part of the process.” CCWG-Accountability has planned a Tuesday conference call on the working group’s work before the Dublin meeting, which will help the group “decide a way forward to reach the final mile of consensus.” Shatan said he remains hopeful that CCWG-Accountability will have "other opportunities" to reach consensus on remaining issues but noted that stakeholders will need to stop "dancing around" disagreements.