IANA Transition: Trapped Between Demands For Detail, Simplicity

Later this week (30 September) the original deadline for the so-called IANA transition runs out. But despite stern warnings from US Assistant Commerce Secretary Lawrence Strickling and former Clinton aide Ira Magaziner that further delays could put the planned change of oversight over the management core internet infrastructure assets at risk, tensions could not be laid to rest over the weekend. After a two-day weekend “dialogue” in Los Angeles between the ICANN Board and the group in charge of developing new accountability mechanisms, it became clear that final text cannot be expected before early next year.

At issue is the proposed end of US government oversight over the Internet Assigned Numbers Authority (IANA), the body holding several core Internet registries including the central root zone for the domain name system and the central IP address pool registry. With the US government transitioning out of its oversight role, a multi-stakeholder community system is expected to hold the old and new IANA manager, the Internet Corporation for Assigned Names and Numbers (ICANN), accountable.

Closure of the work of ICANN’s Cross Community Working Group on Enhancing ICANN Accountability (CCWG) by the time the ICANN meets in Dublin in October is not realistic, CCWG Co-Chair Thomas Rickert told Intellectual Property Watch after the Los Angeles meeting.

“We plan to have another version of the accountability mechanisms ready for Dublin and to discuss it with the chartering organisations at an Intersessional before Marrakesh [March 2016],” Rickert said.

The strengthening of accountability mechanisms for IANA manager ICANN was established as a pre-condition for the transition by the group working on the overall transition proposal.

The basic goal, Rickert said, was to establish a community-based backstop instead of the ultimate backstop performed by the US government so far. Since 1998, the US National Telecommunications and Information Administration (NTIA, now headed by Strickling) has acted as steward for the central root zone and, to a lesser extent, for the other central infrastructure registries (IP addresses and protocol numbers).

When diplomatic tensions over the privileged US stewardship reached a climax in the aftermath of the Snowden revelations, NTIA Administrator Strickling in March 2014 announced the US would end its oversight role and the IANA contract by which it exercised it. Since then the ICANN community as well as the other IANA customers – the Internet Engineering Task Force and the Regional IP Number Registries (RIRs) – have worked feverishly on how to organise community oversight.

In mid-August Strickling announced another extension of the IANA contract for a year. But at the Los Angeles meeting he called on the CCWG and the ICANN Board to bridge gaps and make progress fast. There are still too many open questions about potentially destabilizing effects of concepts discussed so far, he said. While refraining from giving opinions on the different ideas, Strickling asked for more details on one hand, but also warned against complexity.

The Knife’s Edge

“Given the time we’re dealing with, simpler is better,” Strickling said, adding that the group has to “meet our criteria, but if you have different ways to approach it, the one that allows us to go forward with the least amount of churn, change, confusion and misunderstandings that will occur in the future, the better.” NTIA has made IANA stability, global community support for a model and protection against capture, especially by governments, conditions for the transition. He called for completion of the transition by next September, the US official said.

ICANN godfather Magaziner explicitly warned the transition could be derailed once US elections come closer. “I think you can fail,” he said, “and you’re right on a knife’s edge now as to whether you’ll succeed or fail.”

Magaziner characterised the US political scene as “in a state of instability that we haven’t seen in a long time.” With nationalistic points of view being put forward in the US, he recommended: “You need to get this pretty well wrapped up in the terms of agreement on these various issues by the end of Dublin.”

Magaziner urged the CCWG and Board to be prepared to allow those designated by the broader community to come up with the final decisions on controversial issues and also to not overreach. If the CCWG were to decide to “completely redo” ICANN, Congress members could start questioning earlier applause for the multi-stakeholder model.

At the same time failure of the transition – as ICANN Board member and internet governance expert Wolfgang Kleinwaechter wrote in an email to Intellectual Property Watch – would feed international criticism of the multi-stakeholder model.

“The IANA transition is followed pretty closely at the UN as a part of the ‘enhanced cooperation’ discussions,” he explained. Failure would bolster calls like the one of the G77 states and China to consider an “international forum that could engage in multi-lateral governance over the domain name system,” he said.

Magaziner assured participants in Los Angeles: “If this thing takes too long and it fails for that reason or if you can’t get consensus and you’re letting your dislikes or your fears or distrust get in the way and this thing goes down, you’ll regret it for the rest of your lives because you will have missed an historic opportunity.“ At the same time, he assured the CCWG and ICANN Board also that they were very close, as 90 percent of the issues have been resolved.

Last Mile Controversies

Magaziner’s sentiment was echoed by CCWG Co-Chair Rickert, who called on Board and CCWG to not fight a battle over various models, but talk about requirements and concerns for the community empowerment.

The ICANN Board has come out with a strong statement against the proposed “sole membership” model which would request the ICANN community to speak with one voice in challenging Board decisions on budget, bylaw change and strategic plan development. Board members also questioned the right to recall individual Board members or even the Board as a whole. Instead of the sole membership model, they favour the “multi-stakeholder enforcement mechanism” (MEM).

The difference seems to be mainly that the MEM obliges the community to use an internal arbitration process to challenge Board decisions before the Board has to accept them. Rickert is convinced that the new powers foreseen in the CCWG’s sole membership model were “seen as more invasive than they in fact are.” He said he hopes that once the way in which the community will itself decide on interventions has been clearly established, many problems will go away.

The co-chair was eager to promote the many principles that have been agreed upon, for example the creation of fundamental, difficult to change, bylaws and the new powers of the community to speak on important issues like budget or bylaw change. At the same time, Rickert wrestled with ICANN CEO Fadi Chehade during the session over the latter’s attempt to offer interpretation of opinions filed during the public comment period.

Power Shifts, Role of Governments, Role of Netizens

Another power gamble is related to the role governments will play in the future. The potential inclusion of governments as co-deciding partners in the sole membership model would in essence give governments an option of ‘double dipping,” warned Robin Gross, representing the Non-Commercial Stakeholder Group in the CCWG.

Governments also are able to “advise” the Board via a procedure reserved for them so far and they have been arguing angrily against potential limitations of this privilege, for example by limiting their advice to consensus-only decisions.

Governments critical of the attempt to diminish their “advisory” privileges like Brazil also have more to say on the transition. In its written comment to the second CCWG draft, Brazil’s government reminded everyone that the IANA transition process is played according to US rules in the first place. Changing that would be at least a long term (second or third workstream) goal.

“Brazil considers that enhancing the legitimacy of ICANN before all its stakeholders, including governments, requires the adoption of a ‘founding charter’ agreed upon by all stakeholders in replacement of the present pre-determined status of ICANN as a private company incorporated under the law of the state of California”, the country’s written contribution reads.

Rickert said: “Certainly there are people calling for a shift of ICANN jurisdiction to Switzerland. But that did not prevent the FIFA scandal from happening. I think we should focus on contracting law.”

Other highly tricky issues are still to be decided, for example what happens to another core contract to technically handle the IANA registries. Currently this is performed by US company VeriSign under a separate contract with the United States.

Another rather fundamental question looks to be buried in the tons of papers produced and months of discussion-hours spent: while new powers will be given to the “community,” the idea of more direct forms of participation has once more not been considered and the ordinary citizen remains somewhat alien in the “global stakeholder community.” Even the At-large Advisory Committee (ALAC), which will receive community powers, does not provide for individual membership.

“Of course it is excluding the ordinary citizen,” said Milton Mueller, Professor, School of Public Policy, Georgia Institute of Technology, and founder of the Internet Governance Project.

According to Mueller, “only a few faint voices were ever raised in favour of individual membership.” This was for a reason, he said: “Individual membership would eviscerate ALAC’s claim to represent the ‘individual internet user’, as they would now be able to represent themselves.” Plus, it would “do something similar to GAC members’ claim to represent ‘the public’ in their country.” A broader and more democratic membership would be seen as far less predictable and stable than the “known devil” of the Generic Names Supporting Organization (GNSO).

Surely, for ordinary citizens ICANN processes and ICANNese might not be such fun anyway.