Senate Hearings on the IANA Transition Provide Troubling Insight Into Policymakers' Priorities

Last week, the Senate Commerce Committee held its long-awaited hearings on “Preserving the Multistakeholder Model of Internet Governance,” a somewhat euphemistic reference to the “IANA transition” and the Obama Administration’s stated intention to let go of the U.S. government’s last remaining lever of official control over the Internet’s Domain Name System (DNS). Although the hearing was largely uneventful, it yielded some valuable insight into the status of the transition process and the Internet governance issues that U.S. policymakers seem most preoccupied with—as well as important issues to which members of Congress seem to be paying far less attention. While Congress is most worried about preventing authoritarian regimes from gaining more control over the technical underpinnings of the Internet, it could best address that concern and many others by focusing on how to ensure that the entity that ultimately administers the DNS is held accountable for the decisions it makes.

About a year ago, the Commerce Department’s National Telecommunications and Information Association (NTIA) announced that it intended to end—possibly as early as September 2015—its contract with the Internet Corporation for Assigned Names and Numbers (ICANN), a California-based non-profit which has been responsible for policy-making activities related to the allocation of domain names and Internet addresses since 1998. This entails relinquishing U.S. government control and oversight over the Internet Assigned Numbers Authority (IANA) functions, the most significant of which involves the responsibility for maintaining and updating the Internet’s Root Zone file: the single, authoritative database at the very top of the domain name hierarchy, which is the starting point for every one of the trillions of individual domain-name-to-IP-address resolutions taking place each day and on which effective Internet communications critically depends. Like many members of the Internet community, the Open Technology Institute has been supportive of NTIA’s decision to transfer oversight of the IANA functions to the global multistakeholder community, provided that the transition proposals currently being developed are well thought out and meet the necessary criteria. Right now, our focus is on how to establish proper accountability mechanisms for ICANN or whatever other multistakeholder entity ultimately assumes the IANA function, and we’ll have more to say in the coming months as the various proposals for whether (and how) to accomplish this transition start to take shape.

Many in Congress—especially among the new Republican majority in the Senate—have expressed serious reservations about loosening the reins of control over ICANN’s activities. Last April, for example, Senators John Thune and Marco Rubio sent a letter to NTIA seeking clarification about the terms of transition and an explanation of how they will ensure that the IANA functions do not end up being controlled either directly or indirectly by any foreign governments or intergovernmental organizations. In July, Rubio and Thune followed up with ICANN with specific recommendations about oversight, accountability, and dispute resolution. Various House members have also indicated that they may take more aggressive action to delay or stop the transition if it doesn’t meet their approval. Although last year’s attempt to interfere via the Domain Openness Through Continued Oversight Matters (DOTCOM) Act ultimately went nowhere, December’s “Cromnibus” legislation included a provision specifically prohibiting NTIA from using any appropriated funds to “relinquish [its] responsibility during fiscal year 2015 with respect to... the authoritative root zone file and the IANA functions,” which some interpreted as a “man-in-the-middle attack” on the transition.

Frequent reference was made throughout last week’s hearing to five principles that were included in the Senate Commerce Committee’s letters to ICANN and to NTIA in regard to the transition:

• ICANN must prevent governments from exercising undue influence over Internet governance; replacing NTIA's role with another governmental organization would be “disastrous,” and ICANN should “reduce the chances of governments inappropriately inserting themselves into apolitical governance matters.”

• Second, ICANN’s policy development process should continue to be separated from the wholly technical lANA functions, which provides a “safeguard against politicization of technical functions and would prevent concentration of power.”

• Third, ICANN should “increase its accountability through adjustments to the required threshold for Board of Director decisions,” which should be adjusted to require a four-fifths of all voting members to approve any “major policy decision.”

• Fourth, the multi stakeholder community must be given “additional oversight tools,” including annual audits, the establishment of an Inspector General's (IG) office that is granted full access to the organization's finances, documents, and activities, and a re-affirmation of the 2009 Affirmation of Commitments between ICANN and NTIA (which called for periodic reviews of ICANN’s performance of its obligations).

• Fifth, ICANN should adopt an “independent dispute resolution process to ensure that stakeholders' claims are adjudicated for matters relating to ICANN's operation” to provide confidence to the community “that redress is possible when the Board or staff errs and the fairness of the process is called into question.”

On its face, it’s not a bad list of requirements—though the devil here is surely in the details. The transition plans will have to be scrutinized very carefully to determine whether they have actually been met. There are “accountability mechanisms” that can work effectively to check ICANN’s potential abuse of its power over Internet communications, and accountability mechanisms that don’t; there are “independent review processes” that serve as real constraints on the power of the ICANN Board, and others—such as the one that ICANN currently has—that don’t.

Senate hearings are not particularly good places to get into details, especially where, as in the case of the IANA transition, many of them are still being formulated by the parties involved in the transition planning. But as a guide to how the overall process is proceeding—and as a means of taking the Senate’s temperature on what it considers the really important considerations it will be focused upon—last Wednesday’s hearing provided some useful insight.

It got off to a somewhat inauspicious start: you would have hoped that a hearing on preserving the multistakeholder model of Internet governance would have had room for broader participation from within that multistakeholder community – from the technical community, for instance, or the civil society NGOs who have been following and participating in the transition planning. But only three witnesses were asked to testify: Lawrence Strickling, the head of the NTIA and the Administration’s point-man on the transition; Fadi Chehade, ICANN’s CEO; and David Gross, a private lawyer who has led the U.S. government delegations to the U.N.’s Summits on the Information Society, and who appeared representing a number of the larger corporations with an interest in Internet matters. Senator Thune was somewhat apologetic about this lack of diversity on the panel:

“This morning we will hear from a mostly government panel... But the private sector and civil society are active on this issue as well, and as the IANA transition process moves forward it may be appropriate for the committee to dive deeper and hear from [other] stakeholders.”

The Senators, though, were probably more interested in making sure their view of the transition was communicated to Strickling and Chehade than vice versa, and that came through in their questions. Their focus was squarely on the national security implications of the transition, and their predominant concern, repeated over and over again, was with ensuring that authoritarian regimes (read: Russia and China in particular) do not seize the opportunity to gain control over this critical piece of Internet infrastructure once U.S. government oversight is eliminated.

It is certainly an important concern: the DNS can be a powerful lever of control over Internet expression, and many foreign governments would welcome the opportunity to use that lever to gain a more substantial degree of influence over the use of Internet communications for political and personal expression, to the detriment of the freedom and openness that has characterized most of Internet communications up to this point.

We worry, however, about clinging too single-mindedly to this one problem. There are many things that an unconstrained and unsupervised ICANN can do that could do lasting harm to free expression on the Internet and that have nothing whatsoever to do with foreign government influence. For example, ICANN could turn itself—to use an analogy Senator Thune himself used at the hearings—into the Internet analogue of the global soccer association, FIFA (“flush with cash, unresponsive to those it supposedly serves, and accountable to no one”), with control over a trillion-dollar global resource. Or it could use the Internet’s technical infrastructure as a means to enforce policy goals entirely unrelated to DNS operations (e.g. copyright infringement, pornography, hate speech, human trafficking), turning ICANN and the DNS Registry operators into a global law enforcement regime. The transition is, in short, about much more than just keeping the Chinese and Russians at bay, and we hope that these other goals won’t get lost or ignored as the process moves forward.

But the overall tone of the discussion certainly helped solidify the notion that the IANA transition represents an important—possibly an historic—moment in the history of the global network, and for the relationship between the network and the governments of the world. Those in the hearing audience who have been involved in these issues for many years must have been rather amazed at the unanimity of the sentiment expressed by all participants on one central point: there will be no government control, or special role for the governments of the world (authoritarian, democratic, and everything in between), in the operation of this part of the Internet ecosystem. It’s a rather profound shift in perspective from that expressed by 10 or 15 years ago. And it’s a recognition that the Internet—which the United States helped usher into existence 30 years ago—is now truly a global public trust, one that is not within any country’s exclusive jurisdiction and which needs to evolve in ways that benefit all users, world-wide.