U.S. Government Begins Process to Give Up Control Over Key Internet Functions

by Reed Smith

On March 14, the NTIA (the U.S. Commerce Department’s National Telecommunications and Information Administration) announced that it would immediately start a process to transition control of “Key Internet Domain Name Functions” away from the U.S. government.

Since 1998, the NTIA has overseen the administration of various functions relating to the “root zone” of the Internet pursuant to the “IANA Contract” with ICANN (the Internet Corporation for Assigned Names and Numbers). Under the IANA Contract, ICANN coordinated the assignment of technical Internet protocol parameters, administered certain responsibilities associated with Internet DNS root zone management, and allocated Internet numbering resources, under U.S. government oversight. These “IANA Functions” are a critical part of maintaining the “plumbing” of the Internet. The IANA Contract has been renewed every three years, and is next set to expire September 30, 2015. While the plan all along had been to transition away from U.S. oversight of the IANA Functions, no timetable had been set for this transition. As of March 14, all of this changed.

The NTIA announcement stated that it would immediately start a process to transition control of the IANA Contract to the “global multistakeholder community,” and that this was being done to “support and enhance the multistakeholder model of Internet policymaking and governance.” The NTIA asked ICANN to take the first step in this process by convening global stakeholders to develop a proposal for this transition. The NTIA expects ICANN to “work collaboratively with the directly affected parties, including the Internet Engineering Task Force (IETF), the Internet Architecture Board (IAB), the Internet Society (ISOC), the Regional Internet Registries (RIRs), top level domain name operators, VeriSign, and other interested global stakeholders.” Conveniently, ICANN will be holding its next meeting starting March 23 in Singapore, allowing this “convening” to commence almost immediately.

NTIA has communicated to ICANN that the transition proposal must have “broad community support” and address the following four principles:

  • Support and enhance the multistakeholder model
  • Maintain the security, stability, and resiliency of the Internet DNS
  • Meet the needs and expectations of the global customers and partners of the IANA services
  • Maintain the openness of the Internet

Furthermore, the NTIA stated that it would not accept “a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.”

The timing of this announcement, while surprising, is no accident. Over the past year, Edward Snowden’s “revelations” regarding U.S. surveillance have kicked off heightened global criticism of the U.S. role in Internet governance, even though there is no evidence of a direct connection between the two. The IANA Contract was a particular target of this criticism. After Snowden, the government of Brazil called for a “Global Multistakeholder Meeting on the Future of Internet Governance” (“NETmundial”), which is to be held in Sao Paulo in late April 2014. Several Internet governance and management organizations, including ICANN, signed on the “Montevideo Statement,” calling for the globalization of Internet governance.

The transition of the IANA Contract and the IANA Functions were expected to be a key subject at NETmundial, and dozens of written statements and proposals on the subject were submitted to NETmundial before a March 8 deadline. Based on these proposals, it would appear possible that U.S. oversight of the IANA Function could have ended up being transitioned to an intergovernmental organization, perhaps under UN auspices, or a consortium of Internet “registries” (the businesses that run the various Top Level Domains (e.g., .com, .net, .biz or any of the 1,000+ new TLDs that are rolling out on a daily basis, such as .guru or .sucks, or any of the country code TLDs, such as .uk or .fr)). Other proposals would have moved performance of the IANA Function out of ICANN.

The United States decided to respond to this intense international pressure proactively, and, it hopes, pre-emptively. By making this announcement, the NTIA is trying to ensure that it steers the transition in what is views as the proper direction, and that the parameters of the transition get set by the United States. By making this announcement now, the United States is stealing thunder from the NETmundial meeting, which would have been the first place that global players in Internet governance would have discussed the IANA situation. Instead, the transition process will kick off at ICANN’s meeting in Singapore next week, and not in Sao Paulo at the end of next month.

The United States is also endeavoring to make sure that the ITU (the International Telecommunications Union, part of the UN) does not assume this oversight function. For the past several years, the ITU has been jockeying for greater control of the Internet. The NTIA announcement makes it very clear that the United States will NOT accept any proposal that replaces U.S. government oversight with a government-led or intergovernmental organization solution.

Reaction has been swift and significant. The NTIA’s announcement was applauded by a group of Internet technical organizations from around the world, as well as the European Union. Meanwhile, Republicans have accused the Obama administration of giving the Internet away to “foreign dictatorships” and “groups that do not share traditional American values of freedom of expression.”

In many instances, commentators (pro and con) appear to believe that the IANA Contract gives the United States “control of the Internet,” and that transitioning of IANA oversight meant that the United States is walking away from its “stewardship” of the Internet. This is not the case. First, the IANA Contract does not give the NTIA control over ICANN or the Internet. The IANA Functions, while critical, are only a small and relatively ministerial part of the overall picture. Second, the U.S. relationship with ICANN goes beyond the IANA Contract. A great deal of ICANN’s efforts (and the efforts of the various stakeholder groups that work with ICANN to develop policy relating to the domain name system) are focused on policy and process issues that have very little to do with IANA. The most famous (or perhaps infamous) example is the “New gTLD Program,” where ICANN accepted applications to run well in excess of 1,000 new TLDs – the first of which “went live” only a couple of months ago. The United States exercises oversight over this side of ICANN through a document called the “Affirmation of Commitments.” In the short run, the Affirmation will remain unchanged. In the long run, there are clear indicators that the United States could see other nations signing onto the Affirmation of Commitments alongside of it.

The focus is now on Singapore, where ICANN will begin this transition process. The agenda is being hastily reorganized to accommodate public and stakeholder meetings regarding the IANA transition. Organizations are scrambling to determine how to respond, especially in light of the parameters set down by the NTIA. The issues, policies, priorities and solutions discussed in Singapore will do a great deal to shape this transition as it proceeds.

After Singapore, the discussions will continue under ICANN’s supervision, at NETmundial and beyond. One of the challenges will be crafting a process that is fair and inclusive of all stakeholders, including the private sector, the technical community, civil society, academia and governments.

From the perspective of the business community, this raises significant concerns. While the “private sector” (which means the business community in this context) is active at ICANN, the private sector is far less active in other organizations and forums where Internet governance is the major topic. While ICANN is tasked with convening the “global stakeholder community,” ICANN can only do so much to manage the process. It will be up to the “private sector” (businesses, organizations, law firms and others) to ensure that the business community is well represented wherever discussions take place, and to ensure that the interests of the business community are fully taken into account as the future of Internet governance is shaped. If the business community fails to focus, other stakeholder groups will seize the opportunity to shape the Internet to their own advantage, and the private sector may be very unhappy with the result.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reed Smith | Attorney Advertising

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