ICANN Likely to Transmit Positive IANA Transition Report Amid New Challenge

“I'd be surprised if the report contained any surprises,” said former NTIA Administrator John Kneuer, a consultant and Fairfax Media Partners senior partner. “I expect ICANN will say they're on target to complete the transition, that they're ready to go.” It would be surprising “if ICANN puts anything in that report that has the potential to blow the transition up at this point,” said International Center for Law and Economics Associate Director-Innovation Policy Kristian Stout. “There's been a lot of pressure to get this done before President [Barack] Obama's administration ends so they can point to this as an achievement.”

ICANN implementation of the IANA transition plan and a related set of changes to the entity's accountability mechanisms largely went smoothly in recent months, several stakeholders said. The document “will reflect that the community has been working hard and that things are essentially on schedule,” said Generic Names Supporting Organization IP Constituency President Greg Shatan, a McCarter & English internet and IP lawyer. “There have been no major controversies and ICANN is closing open items” for the transition as scheduled, he said. “I'm not aware of any of the drafting teams or subcommittees that are working on these documents having stumbled or otherwise holding things up,” said IANA Stewardship Transition Coordination Group member Milton Mueller, a Georgia Tech communication and information public policy professor.

ICANN released two sets of documents on the IANA functions Wednesday and Thursday that Shatan said are considered to be among the final transition implementation measures needed. ICANN recently completed the collection of comments on a range of PTI governance documents (see 1608080057). Comments on PTI's bylaws were due after our deadline Thursday. ICANN's IANA naming function agreement with the post-transition IANA subsidiary will cement the post-transition agreement for PTI to perform the IANA functions, ICANN said in a notice. “The comments will be analyzed to ensure alignment with the ICG proposal and ICANN Bylaws, and incorporated for the ICANN and PTI Boards’ consideration and approval.” Comments on the IANA functions agreement are due Sept. 9.

ICANN, the Internet Engineering Task Force Trust and operational communities jointly sought comment on a set of four agreements on the transfer of domain names used to perform the IANA functions and IANA trademarks to the IETF Trust. The IANA transition plan required IANA's IP to be transferred to an independent entity post-transition. The agreements include the base IANA IP transfer agreement and three agreements for the IETF Trust to license back the IANA IP, ICANN said in a notice. There are individual licensing agreements for the naming, numbering and protocol parameters of the IANA functions, ICANN said. Comments on the agreements are due Sept. 12.

TechFreedom and other IANA skeptics urged House and Senate leaders to pursue a lawsuit against ICANN given what the groups view as a misguided rush to complete the transition based on an artificial deadline. “Internet governance should work from the bottom up, driven by the global community of private sector, civil society and technical stakeholders,” the TechFreedom-led coalition said in a letter. “But that 'multistakeholder' model is fragile. Without robust safeguards, Internet governance could fall under the sway of governments hostile to freedoms protected by the First Amendment.” Accountability changes “may prove inadequate, or the community too disunited, to hold the ICANN staff or Board accountable,” the groups said. “ICANN has already morphed from the technical coordinating body set up in 1998 into something much more like a government. … There are good reasons to worry about what it may do with this power absent the incentive for self-restraint created by its contract with the U.S. Indeed, even with the transition at stake, ICANN has demonstrated a troubling willingness to ignore its bylaws and procedures.”

A delay of the transition until the end of FY 2017 would continue NTIA's oversight role through the end of the Cross Community Working Group on Enhancing ICANN Accountability's work on a second set of accountability changes, including a debate over whether to permanently base ICANN in Los Angeles, the skeptical groups said. “Also unresolved is a matter of U.S. national security,” the groups said. “The Administration has failed to ensure U.S. ownership and control of .MIL and .GOV in perpetuity. Both are vital national assets.”

The groups said a suit is necessary to rein in what they view as NTIA violation of the funding ban rider, which Congress most recently extended via the FY 2016 omnibus spending bill. “NTIA is not merely reviewing proposed reforms,” the groups said. “It is, by its own admission, doing so as part of a drawn-out process resulting in the decision to let the IANA contract lapse -- precisely what Congress forbade NTIA to do.” House Judiciary Committee Chairman Bob Goodlatte, R-Va., and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, raised similar concerns in June (see 1606270070).

An NTIA spokeswoman disagreed, saying the agency “has followed the law related to the IANA stewardship transition. The law prohibits NTIA from using appropriated funds to 'relinquish the responsibility during fiscal year 2016, with respect to Internet domain name system functions.'” The funding ban rider “does not prohibit NTIA from evaluating a transition proposal or engaging in other preparatory activities related to the transition," the spokeswoman said. "Congress directed NTIA to conduct a thorough review of any proposed transition plan we receive and to provide Congress with quarterly updates on the transition, which we have done.”

The prospect of a Congress-led suit “piqued the interest of a number of representatives and senators,” said Americans for Tax Reform's Digital Liberty Executive Director Katie McAuliffe in an interview. ATR was one of the other groups that signed TechFreedom's letter. “This is clearly an Article 1 [of the U.S. Constitution] problem” that calls into question the Obama administration's commitment to the separation of powers, McAuliffe said. “Whether or not you care about [the IANA transition] as a policy issue, this should be concerning from the perspective of the separation of powers. Without that, what is the point of the legislative branch?”

It wouldn't be surprising if IANA skeptics in Congress choose to sue or “at least make motions to try to discipline NTIA” for its perceived violation of the transition funding ban rider, Stout said: “You could see interest from members of both parties” on that aspect of the transition debate. Shatan said he believes the calls for litigation are “more political theater than anything else, but there are plenty of theatrical types in Congress” who could choose to pursue legal action. The TechFreedom letter “pays lip service to the multistakeholder internet governance model but also appears to be working against” the model's sustainability, Shatan said. “If they're concerned about undermining the multistakeholder model, they should stop” pursuing a delay of the transition, he said.