IANA Transition Skepticism To Return to Spotlight in Senate Commerce Hearing

The Senate Commerce hearing is to include testimony from two IANA transition skeptics and is likely to involve questioning from Sens. Ted Cruz, R-Texas, and Marco Rubio, R-Fla., a domain names industry lobbyist told us. Cruz and two other GOP senators jointly sent a letter to NTIA last week urging the agency to extend its contract with ICANN to administer the IANA functions amid “deep concerns” with ICANN-submitted plans for the transition (see 1605200054). Rubio has been separately circulating a letter to be sent to NTIA urging a temporary extension of the IANA contract to evaluate whether transition-related changes to ICANN’s bylaws work as envisioned.

Americans for Limited Government President Rick Manning and Heritage Foundation fellow Brett Schaefer plan to raise concerns during the Senate hearing about the IANA transition. Schaefer told us his testimony generally will reflect the content of a paper that he and Red Branch Consulting founder Paul Rosenzweig released in March that called for a two-year extension of NTIA’s contract with ICANN to evaluate how ICANN operates under changes effected by the transition (see 1603170051). A “soft extension” of the IANA contract would allow all parties to evaluate aspects of the transition that “aren’t fully developed yet” without giving up U.S. oversight, Schaefer said. “It’s better to get this done right than to do it on the arbitrary deadline” set by the current Sept. 30 end-date of NTIA’s contract, he said.

Manning told us his testimony will focus on the “critical question of whether the [IANA] transition still makes sense” given recent Internet governance developments. The White House’s primary reason for supporting the transition -- to prevent foreign governments from choosing to fragment the Internet through data localization laws and other policies -- has become a “moot point” because “fracturing is already occurring,” Manning said. He pointed to China’s consideration of draft measures that in part would require all China-based domain names to be registered through government-licensed service providers that have established a domestic presence. U.S. officials criticized China earlier this month for considering the measures (see 1605160062). Manning said he will also raise concerns that ICANN’s proposed bylaw revisions related to protecting human rights “opens the door to content regulation, which should be a deal killer.”

Other witnesses Tuesday are generally believed to be more supportive of the transition, a domain names industry lobbyist told us. They include Internet Association CEO Michael Beckerman, NetChoice Executive Director Steve DelBianco, Wiley Rein telecom and Internet governance lawyer David Gross on behalf of the Internet Governance Coalition, and Internet Architecture Board Chairman Andrew Sullivan, Senate Commerce said. Gross and DelBianco both praised the IANA transition plan and a related set of changes to ICANN’s accountability mechanisms during a March House Communications Subcommittee hearing (see 1603170051).

Gross told us he will testify that ICANN’s IANA transition-related proposals meet NTIA’s criteria and that the transition is “in the interests of the U.S. government, U.S. industry, civil society and the technical community.” ICANN has “made great progress” in developing its transition plans and only needs to finalize a few “expected tweaks” to its proposed revised bylaws, he said. Although NTIA won’t complete its review of the transition-related plans until mid-June, “we are optimistic that the results of ICANN’s and NTIA’s remaining work will result in a transition that will meet NTIA’s conditions set forth two years ago and that should benefit not only global businesses but also all those who seek a more global and ubiquitous Internet,” Gross said in advance testimony. “Although the U.S. government’s review of the transition proposal justifiably may take time, the Coalition believes these new accountability mechanisms should be put into place promptly regardless of the timing of the overall transition.”

Comments on ICANN’s proposed bylaw revisions could play a significant role in shaping discussions during the Senate Commerce hearing, Gross told us. Stakeholders who commented on the bylaws generally supported the overall tenor of ICANN’s proposed revisions. A significant number called for ICANN’s lawyers to remove a portion of the bylaws that grandfathers agreements between ICANN and five entities that aren’t set to go into effect until Oct. 1 -- the Address Supporting Organization, Internet Engineering Task Force, Number Resource Organization, Root Zone Management System and Post-Transition IANA. Entities calling for ICANN to remove mentions of the agreements include the IANA Stewardship Transition Coordination Group (ICG) , Generic Names Supporting Organization’s Business Constituency and Google.

The problematic agreements “have not yet been written and most have not yet been agreed to by the relevant parties” but the bylaws would “essentially allow these external agreements to define” ICANN’s mission, said ICG Chairwoman Alissa Cooper in her comments. “This seems like a bad idea for many reasons, not the least of which is that it creates the possibility for the agreements to contradict or circumvent the desires of the community who worked hard to clarify and correctly state ICANN’s Mission throughout the IANA stewardship transition process.”

The Senate Commerce hearing has been expected to be more contentious than the largely positive House Communications hearing (see 1605060065). Stakeholders shouldn’t “expect the kind of fireworks you might have" if NTIA Administrator Larry Strickling or another official from the Obama administration "was under questioning,” said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. Circulation of the Cruz and Rubio letters has heightened anticipation about the tenor of the hearing but their concerns aren’t unreasonable, said Shane Tews, visiting fellow at the American Enterprise Institute’s Center for Internet, Communications and Technology Policy. The transition has “been on a political fast track” and some parties believe it would be beneficial to “hit the pause button until everyone feels comfortable with this,” she said.

Cruz and Rubio will likely discuss their concerns about the transition during the hearing but it’s unlikely to be clear until the hearing’s conclusion whether other Senate Commerce members share their apprehensions, Rosenzweig told us. If those concerns “appear to be widely shared, then it is a real problem,” he said. “If not, then less so.” It will also be important to watch for whether any committee Democrats criticize the transition during the hearing, Corwin said. It’s understandable that Cruz and Rubio are worried about aspects of the transition, Gross said: But “I believe they’ll realize over time that the matters they’re concerned about,” including government influence in ICANN “have been addressed very aggressively and in my view that role will be reduced after the transition.”