May 25, 2016–The Senate Commerce, Science, and Transportation Committee heard differing views today on whether implementing the transition of oversight over the Internet Corporation for Assigned Named and Numbers’ IANA (Internet Assigned Numbers Authority) function away from the U.S. Department of Commerce to the global multistakeholder community by the end of September would increase or decrease the risk of interference by governments or multilateral organizations in Internet governance.

ICANN forwarded the IANA transition proposal to the National Telecommunications and Information Administration on March 10, and NTIA planned to complete within 90 days its review of the proposal for compliance with criteria it laid  out in the spring of 2014, including: support and enhance the multistakeholder model of Internet governance; maintain the security, stability, and resiliency of the Internet domain name system; meet the needs and expectations of the global customers and partners of IANA services; and maintain the openness of the Internet. 

The Commerce Department’s IANA contract with ICANN expires at the end of September, and some parties are calling for an extension of the contract to allow for more time to vet the IANA transition proposal.  Others, however, argue that a delay will signal to the rest of the world that the U.S. has lost faith in the multistakeholder model of governance and will be used by other countries as an excuse to try to interfere in Internet governance.

“Regardless of where one stands on the transition, we should recognize the difficult work that has been done, and the ongoing commitment that will be needed if the transition is to be completed in a way that addresses the important concerns that have been raised about the future governance of the Internet,” Commerce Committee Chairman John Thune (R., S.D.) said in his opening statement this morning.

He noted that at a hearing on this subject last year, as the transition plan was being developed, he had said that he “would review any IANA transition plan to make sure it both meets the requirements laid out by NTIA, and that it adopts meaningful accountability reforms, such as curtailing government involvement in apolitical governance matters; providing additional oversight tools to the multistakeholder community; and adopting an independent dispute resolution process.”

Chairman Thune added, “At last year’s IANA hearing, I said that the goal of everyone here is the same: we want one, global Internet that is not fragmented nor hijacked by authoritarian regimes. Whether the IANA transition goes forward or not, I know that everyone wants to ensure all Internet users can continue to have complete faith that the IANA functions will be carried out effectively and seamlessly long into the future.”

Sen. Brian Schatz (D., Hawaii), ranking member of the Senate communications, technology, innovation and the Internet subcommittee, said, “The experts are clear—the IANA transition needs to happen, and it needs to happen on time.  The Internet may have its roots in the U.S., but its social, economic, and human rights benefits depend on the Internet’s global nature. A successful IANA transition will ensure that the global community continues to benefit from an open Internet.”

Witness Rick Manning, president of Americans for Limited Government, said that the Internet “is working” under the current IANA oversight regime and that “the burden of proof is on those who want to change it.”  He pointed to a recent blog post by Daniel Sepulveda, U.S. coordinator for international communications and information policy at the State Department, suggesting that the Internet is already “fracturing” (TRDaily, May 10), which means that “the rationale for the transition is moot.”

Brett Schaefer, international regulatory affairs fellow at the Heritage Foundation, said, “We have one chance to get this right.”  He recommended “at the very least a soft extension of the existing contract,” suggesting a two-year extension.

Internet Architecture Board Chair Andrew Sullivan said that the U.S. government’s involvement in the IANA function is unnecessary and at times causes harmful delays in needed changes.  The IANA function should “work the way the rest of the Internet works,” based on private contractual agreements, he said.

Chairman Thune asked Mr. Schaefer and witness Steve DelBianco, executive director of NetChoice, to explain their differing views on whether the IANA transition proposal would increase government power over ICANN.

Mr. DelBianco said that while the proposal gives government “a role alongside other stakeholders, … government gets one vote.”  He also said that governments don’t get a vote when the question is whether the ICANN board should accept the recommendations of governments.

Mr. Schaefer suggested that because the ICANN board “decides whether GAC [Government Advisory Committee] advice fed into a decision,” it leaves a loophole for government influence.  “The U.S. might find itself very easily outvoted on GAC advice” in a large multistakeholder vote on whether such advice should be taken.

Chairman Thune said that “on its face,” Mr. Schaefer’s suggestion of a two-year extension of the IANA contract “doesn’t seem to be an unreasonable proposal.”

Mr. DelBianco said that such an extension “sends the signal that the U.S. is not serious about the IANA transition.”  He added that some of the Heritage Foundation’s proposals were circulated during the development of transition proposal, and they were not accepted by the multistakeholder community.  Mr. DelBianco said that a delay can’t be positioned as “a test drive” because the powers of community under the transition proposal to disapprove the ICANN budget or “spill the board” are only to be exercised under extraordinary circumstances that might not occur for a decade.

David Gross, former U.S. coordinator for international communications and information policy at the State Department during the administration of President George W. Bush, who appeared today on behalf of the Internet Governance Coalition, said that a one- or two-year delay in the transition would be perceived as preemption of the multistakeholder community and as proof for “the argument of Russia and China that Internet ought to be province of governments.”

Sen. Schatz asked what recourse there would be if “a decision is made that’s not in the U.S. interest.”

Mr. DelBianco said that if such advice came in a letter from the GAC to the ICANN board, the latter would be “under no special obligation to accept that advice.”

Sen. Schatz asked for confirmation that “if a faction within GAC makes a recommendation contrary to U.S. interest, it wouldn’t have to be followed.”

Mr. DelBianco agreed, adding that “any party that feels aggrieved” or that the action violates ICANN by-laws  can bring a challenge, and that the by-laws would be enforceable in California courts.

In response to a question from Sen. Deb Fischer (R., Neb.), Mr. Schaefer said, “Governments will have more power in the ICANN post-transition than they do now,” because they will be able to propose actions to the ICANN board “and then go into the community and have a vote there as well.”

Sen. Fischer was among several senators who raised concerns that the U.S. would lose its exclusive use of the .mil and .gov top-level domains (TLDs), saying that she was “concerned about security if those domains are no longer exclusive.”

Mr. DelBianco said he agreed that there is cause for concern, but that the solution is a contract between the U.S. government and ICANN, and that if the U.S. government would draw up a contract addressing the use of the two domains, “ICANN will sign it.”

Sen. Kelly Ayotte (R., N.H.) asked whether there was something holding up action on the .mil and .gov domains, and Mr. DelBianco said, “I am told GSA and DoD are satisfied with the status quo, yet if they felt they needed more documentation, ICANN would sign it.”  He added, “I suggest those questions be directed to the agencies.”

Sen. Ayotte said, “That sounds like an important question for government oversight, so we’ll follow up with them.”

An NTIA spokeswoman told TRDaily that “the operation of and responsibility for .mil and .gov are not impacted by this transition as they are not part of the IANA functions contract or related root zone management responsibilities. Further, per the policies, procedures, and practices in place, .mil and .gov cannot be sold or transferred without explicit agreement first from the current administrators of those domains—namely, the U.S. government. 

“However,” the spokeswoman added, “in light of concerns posed by Congress, we have taken steps with ICANN that will reaffirm the U.S. government as the administrators of .mil and .gov, and that will require express approval from the U.S. government before any changes associated with the administration of .mil and .gov can be made.”  

Sen. Ayotte asked, “What should members of Congress be most focused on?”

Mr. Sullivan said, “The key thing to keep in mind is that this is a voluntary system.  They chose it because they had a choice.”  The danger,  he added, is that if the U.S. abandons the IANA transition, users will leave the IANA root system.

Sen. Corey Gardner (R., Colo.) asked whether the transition proposal sends “a strong enough message to bad actors like China that the U.S. will not tolerate” government interference with the Internet.

Internet Association President and Chief Executive Officer Michael Beckerman said, “The best thing we can do is be the example for the world and let the stakeholder community … take the reins.”

Sen. Steve Daines (R., Mont.) asked whether the proposal will achieve a less “bureaucratic” system. 

Mr. Sullivan said yes, because NTIA’s involvement in IANA oversight occurs after “all the technical work has already been done.”  He cited an example in which the need for NTIA approval delayed implementation of the addition of name servers to address a cyber attack.  “You should get rid of code you don’t need.  They’re just bugs waiting to happen,” he said.

Sen. Ron Johnson (R., Wis.) asked, “What’s broken?  Why do we need a transition?”

Mr. Schaefer said the impetus for the transition is “political” and that “the system is not broken.”  He said he disagreed strongly with Messrs. DelBianco and Gross that a delay in the transition “will send the message that the U.S. has lost faith in the stakeholder community.”

Sen. Johnson said, “We have extended this contract four times.  Did a disaster result?”  He added, “All change is not progress.  All movement is not forward.”

Sen. Marco Rubio (R., Fla.) said he doesn’t “dispute” or “dismiss offhand” the idea that “the world has grown up” and wants a greater stake in Internet governance.  “What I do dismiss is the idea that if we don’t this on an accelerated time frame … the world will walk away, … saying, ‘we knew all along that you wouldn’t give it up.’”Sen. Rubio said that he intended “to communicate this to the administration in a letter today.”

Sen. Richard Blumenthal (D., Conn.) asked what message a congressional vote requiring a delay would send. 

“That the U.S. government isn’t ready to do this,” Mr. Sullivan responded.  In addition to the message to other countries, he said, “I’m worried about message this would send to network operators all around the world. … People are going to say, ‘Why should I participate in this voluntary system if other people don’t hold up their end of the bargain?’”

Chairman Thune asked how Russia or other countries could use ICANN functions if they “captured” it.

Mr. Sullivan said, “The answer is they can’t. … Countries can do things inside their own borders, but they cannot subvert the Internet to make other people do things.”

Chairman Thune asked what domain name server mechanism at ICANN “these countries would use” to try to control the Internet.

“The only thing ICANN controls is TLDs. … The only thing you can get control over is the root zone, if you could get control of it.  In the wildest fantasy they could de-delegate the .com domain from Verisign, but they cannot control a single domain within .com,” Mr. Sullivan said.

“So there’s no way China could use ICANN to control the Internet in United States?” Chairman Thune asked.

 Mr. Sullivan agreed. Chairman Thune said, “That’s an important point.” —Lynn Stanton, lynn.stanton@wolterskluwer.com

Courtesy TRDaily