ICANN taking next steps to model internet self-governance

With the ball on the IANA - Internet Assigned Numbers Authority (IANA), responsible for the global coordination of the DNS Root, IP addressing, and other Internet protocol resources - transition in the court of US politics, the ICANN community delves into another round of clarifications and inventions for practical global self-governance of internet core resources.

Not a done deal, the transition of oversight over the central root zone of the Domain Name System from the US to an “empowered community” kept the Internet Corporation for Assigned Names and Numbers (ICANN) busy at its 56th meeting in Helsinki this week. Very busy, in fact. While another cross-community working group tackles leftover issues including ICANN's jurisdiction, governments’ struggle to define their new role in the post-IANA world.

On 9 June the US National Telecommunications and Information Administration (NTIA) acknowledged that proposals presented by the ICANN community and other users of IANA met all NTIA conditions for full privatisation. The coordination ensures interoperability and universal connectivity. ICANN since 1998 performed the IANA tasks under contract with the US NTIA. Now an “empowered community“ shall become the self-governing steward for the core internet resources.

Will Congress step in or not?

On 30 September the IANA contract will run out and the new “multi-stakeholder“ IANA era is expected to start. This was no big topic this week in Helsinki, though. Despite green lights from the NTIA on 9 June, a political battle is still ongoing in the US. A handful of Republicans, including former leadership candidate Ted Cruz have been warning against what they say would mean “giving away the Internet“.

Would the US Congress pass the draft “Protecting Internet Freedom Act“, introduced recently by Senator Cruz, Congress would get a final say on the transition, explains Thomas Rickert, lawyer for the German Industry Association Eco and one of the Co-Chairs of the Cross-Community Working Group on Accountability. This working group had successfully hammered checks and balances for the stakeholder groups (commercial, non-commercial and governmental) to control the more powerful ICANN self-regulator, which instead tried to just carry on. 

Despite receiving ‘A’ grades for the procedures from the NTIA and external academic studies commissioned by the NTIA, Rickert said, that it is “very difficult for us to say at this point, how this will play out.“

Without Congress stepping in, transition in September is likely, observers think. NTIA which just did address the Republican concerns in a 28 June letter to Cruz supporter Marco Rubio has set one more deadline for ICANN. On 12 August the regulatory body will "gauge whether all the transition related work will be completed prior to September, 12”.

Implementation work, including the change of bylaws and the finalisation of contracts with the IANA-customers from the IP address community and the standardisation body Internet Engineering Task Force (IETF) was currently pushed by ICANN staff, a rather optimistic Rickert reported. In case implementation is not to the NTIA's liking, “NTIA, in consultation with ICANN and stakeholders will determine the appropriate contract extension,” the NTIA letter to Rubio states.

Governments grappling with their new role as one of many

With not much more the ICANN community could do other than hoping for the best from ICANN staff and US politics in Helsinki, Rickert's CCWG went ahead to kickstart work on items left-over from the accountability “workstream 1“. Workstream 2 instead is supposed to tackle some of the really complex issues – is there a way to solve the problem that ICANN is bound to one jurisdiction whose laws may bring its partners in conflict with their own jurisdiction? Should it therefore reside in many? And also, what are the responsibilities of the quasi global regulator with regard to international human rights? On these and issues like transparency, diversity and accountability of the self-selecting stakeholder groups themselves, proposals will be developed over the coming year. 

Helsinki also saw preparations of the various stakeholder groups for themselves the post-IANA-transition system. In the Governmental Advisory Group (GAC) opinions about the future role of governments in the multi-stakeholder empowered communities clashed, with everybody eager to be very diplomatic. Chris Hemmerlein, newly designated representative for the NTIA, underlined the US standpoint that the GAC should stick to its advisory role. “We do not support the GAC exercising any of the community powers in a decision-making role“, said Hemmerlein.

Government representatives from Brazil, Swaziland and Iran did not like this idea at all. The GAC had decided already, the Brazilian GAC representative noted, “that the GAC accepts its role as a decisional participant. Now we need not discuss how we will put this in practice but there is a decision that we will be a decisional participant and that is settled”. GAC Chair Thomas Schneider tried to calm the waters, acknowledging that there were those in the GAC that favoured to have an advisory-only GAC and those who wanted to see GAC participating in decisions – for example in potential community challenges over the ICANN budget – much more. “And there are those that think it should be decided on a case by case basis,“ Schneider said.

More influence of governments via the multi-stakeholder process – which some would call more co- than self-regulation – has been contentious for years. Some governments thought the reformed Post-IANA ICANN still lacked in government influence – others like Republican politicians warn against autocratic countries “taking over“.

Two or three bites of the apple

Government influence already has been highly effective at times in ICANN even without decisional powers. One of the avenues sought was criticised just this week by registrars and members of the Non-Commercial Stakeholder Group.

With a hard-fought compromise for a new policy on privacy and proxy registrars being on the way to implementation, law enforcement representatives in the new ICANN Public Safety working group called to push for additional safeguards now. Privacy registrars which allow customers to hide personal data from the public WHOIS should, a FBI officer explained, answer requests from law enforcement agencies not only of their own, but also of other countries as well. Taking the usual route via mutual legal assistance is too slow and cumbersome.

“Investigating and responding to allegations of abuse is fine. Sharing personal data is problematic. Our default is to request something from an Irish court,“ explains Michele Neylon, CEO of Irish Registrar Blackknight and outgoing Chair of the Registrar Stakeholder Group. “The policy work for proxy privacy took us years of hard work to agree on. The GAC and law enforcement cannot circumvent the policy development process just because they don't like the outcome.“

Regardless of checks and balances, a lot of watching has to be done for a global internet governance body to function at full potential.

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