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Trump nominee open to retaking ICANN oversight role

Kevin Murphy, January 19, 2017, Domain Policy

The incoming head of the US Department of Commerce has indicated that it is unlikely he’ll try to reestablish the US government’s unique oversight of ICANN, at least in the short term.

But at his confirmation hearing in Congress yesterday, Trump nominee for secretary of commerce Wilbur Ross said he’d be open to ideas about how the US could increase its power over ICANN.

He was responding to a question from Ted Cruz, the Texas senator who made halting the IANA transition one of his key concerns last year.

Cruz, framing the question in such a way as to suggest ICANN is now in the hands of an intergovernmental consortium (which it is not) asked Ross whether he was committed to preventing censorious regimes using ICANN to hinder Americans’ freedom of speech.

Ross replied:

As such a big market and really as the inventors of the Internet, I’m a little surprised that we seem to be essentially voiceless in the governance of that activity. That strikes me as an intellectually incorrect solution. But I’m not aware of what it is that we actually can do right now to deal with that. If it exists, if some realistic alternative comes up, I’d be very interested.

His response also mischaracterizes the power balance post-transition.

The US is not “essentially voiceless”. Rather, it has the same voice as every other government as a member of the Governmental Advisory Committee.

Its role is arguably still a lot more powerful than other nations, given that ICANN is now bylaws-bound to remain headquartered in California and under US jurisdiction.

As head of Commerce, Ross will have authority over the National Telecommunications and Information Administration, the agency most directly responsible for dealing with ICANN and domain name issues in general.

NTIA itself will to the best of my knowledge still be headed by assistant secretary Larry Strickling, who handled the IANA transition from the US government side. (UPDATE: this may not be correct)

Ross, 79, is a billionaire investor who made most of his estimated $2.5 billion fortune restructuring bankrupt companies in the coal and steel industries.

ICANN retires Affirmation of Commitments with US gov

Kevin Murphy, January 9, 2017, Domain Policy

ICANN has terminated its last formal oversight link with the US government.

Late last week, ICANN chair Steve Crocker and Larry Strickling, assistant secretary at the US National Telecommunications and Information Administration mutually agreed to retire the seven-year-old Affirmation of Commitments.

The AoC, negotiated during the tail end of Paul Twomey’s leadership of ICANN and signed by successor Rod Beckstrom, laid out ICANN’s responsibilities to the US government and, to a lesser extent, vice versa.

It included, for example, ICANN’s commitments to openness and transparency, its promise to remain headquartered in California, and its agreement to ongoing reviews of the impact of its actions.

Ongoing projects such as the Competition and Consumer Trust Review originate in the AoC.

The rationale for concluding the deal now is that most of significant provisions of the AoC have been grandfathered into ICANN’s revised bylaws and other foundational documents following the IANA transition, which concluded in October.

Reviews such as the CCT and the lock on its California HQ are now in the bylaws and elsewhere, ICANN said in a blog post.

It’s worth mentioning that the US gets a new administration led by Donald Trump in a little over a week, so it probably made sense to get the AoC out of the way now, lest the new president do something insane with it.

The letters from Crocker and Strickling terminating the deal can be read together here (pdf).

States drop IANA transition block lawsuit

Kevin Murphy, October 17, 2016, Domain Policy

Four US states attorneys general have quietly thrown in the towel in their attempt to have the IANA transition blocked.

The AGs of Texas, Nevada, Arizona and Oklahoma unilaterally dropped their Texas lawsuit against the US government on Friday, court records show.

A filing (pdf) signed by all four reads simply:

Plaintiffs hereby provide notice that they are voluntarily dismissing this action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

That basically means the case is over.

The AGs had sued the US National Telecommunications and Information Administration, seeking an eleventh-hour restraining order preventing the IANA transition going ahead.

The TRO demand was comprehensively rejected, after ICANN and organizations representing numerous big-name technology companies let their support for the transition be known in court.

The plaintiffs had said they were considering their options, but now appear to have abandoned the case.

It was widely believed that the suit was politically motivated, an attempt by four Republican officials to stir up anti-Obama sentiment in the run-up to the US presidential election.

Judge says IANA transition suit unlikely to succeed

Kevin Murphy, October 4, 2016, Domain Policy

A Texas judge refused demands for a temporary restraining order preventing the IANA transition going ahead last weekend because the suing state attorneys general were unlikely to succeed at trial.

That was one of several reasons Judge George Hanks refused the TRO, which had been requested by the Republican AGs of Texas, Arizona, Oklahoma and Nevada.

Hanks’ order on the motion, which was published last night (pdf), said the AGs:

have not shown that there is a substantial likelihood that they will prevail on the merits of this case. Nor have they shown that there is a substantial threat that an irreparable injury will be suffered. Nor have they shown that the threated injury outweighs the threatened harm to the United States. Finally, they have not shown that granting the injunction will not disserve the public interest.

The lawsuit claims that the IANA transition, which involves the US government removing itself from its oversight roles of ICANN and DNS root zone management, represents a threat to free speech and to the stability of the .mil and .gov TLDs.

The eleventh-hour complaint was filed on Thursday, after attempts by Senator Ted Cruz and his allies to block the transition via a Congressional funding bill failed.

But Hanks ruled that the AGs claims about potential future harms amounted to no more than “speculation” and “hearsay”.

He wrote: “counsel’s statements of what ‘might’ or ‘could’ happen are insufficient to support the extraordinary relief sought in this case.”

He also pointed to one significant logical inconsistency in their argument:

Even if the Court were to find that some past harm or bad acts by the Internet Corporation for Assigned Names and Numbers (“ICANN”) impacted the interests of the States in their respective websites and alleged rights at interest, the Court notes that these past harms happened under the exact regulatory and oversight scheme that the States now seek to preserve. This, along with the lack of evidence regarding any predictable or substantially likely events, greatly undermines the States’ request for they relief they seek.

The AGs are reportedly considering their options following the ruling, and may appeal.

But another school of thought holds that the suit was largely a political gesture designed to creating talking points for the Republican party ahead of next month’s presidential election, and could be allowed to fade away.

Root hits 1,500 live TLDs as US oversight ends

Kevin Murphy, October 4, 2016, Domain Registries

The DNS root saw its 1,500th concurrent live TLD come into existence on Friday, just hours before the US relinquished its oversight powers.

Amazon received its delegation for .通販 (.xn--gk3at1e, Japanese for “online shopping”) and satellite TV company Hughes got .dvr, meaning “digital video recorder”.

That took the number of TLDs in the root to exactly 1,500, which is where it still stands today.

Both went live September 30, which was the final day of ICANN’s IANA contract with the US National Telecommunications and Information Administration, which expired that night.

An ICANN spokesperson confirmed that the two new gTLDs “were the last ones requiring NTIA’s approval.”

From now on, the small clerical role NTIA had when ICANN wanted to make changes to the root is no more.

The fact that it hit a nice round number the same day as ICANN oversight switched to a community-led approach is probably just a coincidence.

Amazon’s .通販 was almost banned for being too confusingly similar to “.shop”, but that ludicrous decision was later overturned.

Hughes’ .dvr was originally intended as a single-registrant “closed generic”, but is now expected to operate as a restricted but multi-registrant space.