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Congressional Discussions on the Transition of Internet Domain Name Functions from the U.S. Department of Commerce to ICANN

April 3, 2015

Author: Emily Alban.

Yesterday, April 2, the House Energy and Commerce Committee held what will likely be the first in a series of Congressional hearings on the transition of Internet domain name functions from the U.S. Department of Commerce to ICANN. Even members of Congress who support the transition expressed serious concerns about ensuring that ICANN remains accountable, that the Internet remains open, and that the Internet and Internet policy remain free of government control. Much of the discussion focused on proposed legislation that would require the U.S. Government Accountability Office (GAO) to provide a report on various aspects of the proposed transition and what they would mean for U.S. policy and global Internet governance. Other than the proposed legislation, little else was offered in the way of concrete methods for addressing Congressional concerns. Repeated assurances from ICANN and the Department of Commerce that the transition will result in an Internet governance structure that is open, transparent, and free from government control did not seem to appease all of the members of the Committee.

The next hearing on the proposed transition is scheduled for April 10 in the House Judiciary Committee. As of yet, no Senate hearings have been scheduled, but it seems likely that the issues involved will continue to garner Congressional attention and could eventually factor in post-election government funding consideration.

I. Background

The Internet’s Domain Name System (DNS) is the system of protocols and stored information that allows Internet users to accurately identify and retrieve websites, mail servers, and other Internet locations. In 1998, pursuant to a directive from President Clinton to privatize and internationalize the DNS, the Department of Commerce’s National Telecommunications and Information Administration (NTIA) delegated to ICANN authority for coordinating certain policies governing the DNS.

ICANN currently operates under two contracts with the U.S. government. ICANN’s authority over the technical functions related to maintaining and changing the DNS, called the “Internet Assigned Numbers Authority (IANA) functions”, are governed by a zero-price, sole-source contract between ICANN and the NTIA.

The second agreement between the U.S. government and ICANN is the Affirmation of Commitments, requiring ICANN to abide by certain principles, including accountability and transparency, and requiring ICANN to remain a not-for-profit corporation headquartered in California.

On March 14, the NTIA announced its intention to relinquish its role in the IANA functions contract, and called for ICANN “to convene global stakeholders to develop a proposal” to transition that contractual arrangement. The NTIA expects the proposal to maintain the openness of the Internet, and will not approve a proposal that replaces the NTIA role with a government-led or inter-governmental organization.

II. Keeping America’s Promises or Endangering Internet Freedom?

In response to the NTIA’s announcement, the House Energy & Commerce Committee, Subcommittee on Communications and Technology, called yesterday’s hearing.

Testifying firmly in favor of the proposed transition were:
  • Lawrence Strickling, Assistant Secretary for Communications and Information and head of the NTIA;
  • Fadi Chehadé, President of ICANN;
  • Ambassador David Gross, representing the Internet Governance Coalition; and
  • Carolina Rossini of the Open Technology Institute at New America Foundation, also supported the transition.
A fifth witness, Steve DelBianco, the Executive Director of NetChoice, also supported the transition in principle, but emphasized the potential that the transition could result in an ICANN with no accountability or where governments are able to enact policies that are contrary to freedom and openness. Mr. DelBianco called on Congress to exercise close oversight of the NTIA to ensure that such undesirable outcomes are avoided.

The creation of ICANN was intended to be part of a process that would result in complete privatization of the Internet DNS. Both the Affirmation of Commitments and the IANA Functions Contract were intended to be temporary. Thus, for many, the NTIA’s recent announcement is simply a further step in the ongoing privatization process. This viewpoint was repeatedly asserted by all of the witnesses at yesterday’s hearing. On the other hand, many Committee members expressed significant concerns about how the transition would be carried out, and in particular the possibility that countries such as Russia or China would attempt to seize control of the Internet. Republican members, including Subcommittee Chairman Greg Walden, were particularly vocal on these questions.

For instance, Chairman Walden asked what would prevent a post-transition ICANN from re-constituting itself as a different entity, perhaps one not headquartered in the United States. Mr. Strickling answered that such a move would be prohibited by the Affirmation of Commitments, but Chairman Walden correctly noted that that Affirmation could be cancelled by either party. Despite assurances from Mr. Chehadé that ICANN has no present intentions of terminating the Affirmation or moving ICANN, Chairman Walden questioned whether such assurances would hold in the future as the administration of ICANN changed. Even some Democratic members, despite their general support for the proposed transition, expressed some concern that there could be a future situation where ICANN allowed bad state actors to exercise undue influence, and that the U.S. would have no ability to intervene.

Practically speaking, the U.S.’s ability to enforce the Affirmation is mostly based on its ability to withdraw from the IANA Functions Contract, completely undermining ICANN’s authority over the DNS. No other outside body has such leverage over ICANN. Thus, although some of the concerns about hostile governments taking over the Internet are overblown, it is not unreasonable to be concerned with how to ensure both ICANN’s future accountability and its freedom from other undue influence. The witnesses all agreed that a proposal for transition must ensure that ICANN remains committed to the principles in the Affirmation. Mr. Strickling and Mr. Chehadé repeatedly asserted that no transition proposal would be accepted without such guarantees, but could not offer any additional insight into how proposals would meet these goals or even how proposals could be evaluated to determine if they meet these goals.

III. The DOTCOM Bill

The DOTCOM Bill, recently introduced by Rep. Shimkus, and co-sponsored by ten other Republicans, proposes that the NTIA be prohibited from relinquishing its role in the IANA Functions Contract until the GAO submits a report on various ICANN governance issues. . Responding to Rep. Shimkus, both Mr. Chehadé and Mr. Strickling stated that they neither opposed nor supported GAO review, but were committed to a transparent transition process and a full airing and discussion of the issues.

The opposition expressed by some Democrats is somewhat surprising in light of the fact that the bill only proposes a GAO review. The bill does not even require any action based on the review or its results. Nonetheless, Ranking Member Waxman called on Congress to “resist calls for reactionary legislation.” Rep. Michael Doyle (D PA) likewise expressed opposition, although he noted that he did not oppose a GAO review, just the potential delay it could cause.

On the subject of potential delay caused by a GAO report, Ms. Rossini testified that it could empower governments seeking to seize power for themselves or vest power in an intergovernmental organization such as the UN. On the other hand, however, Rep. Shimkus referred to the testimony of Mr. Chehadé, Mr. Strickling, and Ambassador Gross, who all testified repeatedly that there was no need to rush any transition. All three agreed that, although the current IANA Functions Contract is set to expire in September 2015, it can also be extended for up to four years after that date to ensure that there is sufficient time to ensure the transition is handled properly.

IV. What Does This Mean?

>It’s apparent that influential members of Congress, particularly within the House majority, have significant concerns regarding the proposal to relinquish the U.S. government’s role in the IANA Functions contract. Given that both ICANN and the NTIA are responding by asserting that any proposal will be sure to address Congress’s concerns, without being able to offer any concrete details, the resolution to Congress’s questions is evolving, and will likely have input from multiple committees and the Senate. In the meantime, Congress is creating a role for itself in overseeing the transition and evaluating proposed transition models. Even if the DOTCOM Bill does not pass, there will certainly be more hearings on the matter. There is already a hearing before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property, and the Internet scheduled for April 10, and Congress will almost certainly schedule more hearings once there is something approaching a concrete transition proposal in place.

It is somewhat premature to speculate as to whether Congressional monitoring of the proposed transition will ever result in action to block the transition, and even more premature to speculate on the likelihood that such attempts would succeed. After yesterday’s hearing, however, the possibility of additional action should not be ruled out.
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Emily Alban
Associate – Washington, D.C.
Phone: +1 202.624.2718
Email: ealban@crowell.com