The US National Telecommunications and Information Administration has waded into the ICANN accountability debate, possibly muddying the waters in the process.
In a blog post last night, NTIA head Larry Strickling said that community proposals for enhancing accountability were not yet detailed enough, and had not reached the desired level of consensus, for the NTIA to support them.
He urged everyone involved to simplify the proposals and to work on areas where there is still confusion or disagreement.
The comments were directed at the Cross Community Working Group on Enhancing Accountability (CCWG), a diverse volunteer committee that has been tasked with coming up with ways to improve ICANN accountability after the US government severs formal oversight of the IANA functions.
That group spent a year coming up with a set of draft proposals, outlining measures such as stronger, harder-to-change bylaws and improvements to the Independent Review Process.
But the main organizational change it proposed is where the most conflict has emerged.
CCWG thinks the best way to give the community a way to enforce accountability is to change ICANN into a membership organization, a certain type of legal entity under California law.
It would have a Sole Member, a legal entity peopled by members of each part of the community, which would have to right to take ICANN to court to enforce its bylaws.
The ICANN board doesn’t dig this idea one bit. Its outside attorneys at Jones Day have counseled against such a move as untested, overly complex and potentially subject to capture.
On a recent three-hour teleconference, the board proposed the Sole Member model be replaced by a “Multistakeholder Enforcement Mechanism”.
The MEM would create a binding arbitration process — enforceable in California court — through which ICANN’s supporting organizations and advisory committees could gang up to challenge decisions that they believe go against ICANN’s Fundamental Bylaws.
Since this bombshell, a key question facing the CCWG has been: is the board’s view being informed primarily by its lawyers, or has Strickling been quietly raising NTIA concerns about the proposal via back-channels?
If it’s the former, the CCWG and its own outside counsel could robustly argue the community’s corner.
If it’s the latter, it’s pretty much back to the drawing board — because if the NTIA doesn’t like the plan, it won’t be approved.
Unfortunately, Strickling’s latest blog post avoids giving any straight answers, saying “it is not our role to substitute our judgment for that of the community”.
But his choice of language may suggest a degree of support for the board’s position.
As I stated in Argentina in June, provide us a plan that is as simple as possible but still meets our conditions and the community’s needs. Every day you take now to simplify the plan, resolve questions, and provide details will shorten the length of time it will take to implement the plan and increase the likelihood that the plan will preserve the security and stability of the Internet. Putting in the extra effort now to develop the best possible consensus plan should enhance the likelihood that the transition will be completed on a timely schedule.
The emphasis on “simplicity” could be read as coded support for the board, which has repeatedly said that it thinks the Sole Member model may be too complicated for the NTIA to swallow.
Both the board and Strickling’s latest post refer back to a speech he made in Buenos Aires in June, in which he said:
If a plan is too complex, it increases the likelihood there will be issues that emerge later. Unnecessary complexity increases the possibility that the community will be unable to identify and mitigate all the consequences of the plan. And a complex plan almost certainly will take longer to implement.
Strickling certainly knows that the board has been citing these comments in its objection to the Sole Member model, so the fact that he chose to repeat them may be indicative of which way he is leaning. Or maybe it isn’t.
Either way, I think it’s going to be tough for the CCWG to easily dismiss the board’s concerns.
CCWG members are currently on planes heading to ICANN headquarters in Los Angeles for a two-day face-to-face meeting at which the chairs “expect that a large portion of our time… will be reserved to answering the tough questions”.
Many believe that unless this meeting is extraordinarily successful, it’s going to be tough for an IANA transition proposal to be approved by the NTIA under the current US administration.
ICANN’s board of directors came to blows with its key accountability working group this week, over proposals that would give ICANN the community the right to sue ICANN the organization.
An extraordinary three-hour teleconference between the board and the Cross Community Working Group on Enhancing Accountability (CCWG) Wednesday night came across like some kind of weird, Orwellian, passive-aggressive piece of emotional domestic abuse.
The CCWG, a group of volunteers coming from all parts of the ICANN community, has created a set of proposals for improving ICANN’s accountability to the community as part of its transition process away from US government oversight.
The idea is to create sufficient accountability mechanisms so that if in future the entire ICANN board grows goatee beards and turns Eeevil, the community will still be able to hold them to their bylaws commitments.
The CCWG, following the advice of an independent law firm, decided that the best way to do this was to turn ICANN into a membership organization with a “Sole Member”.
This member would be a legal entity run by community members that would have the right under California law to sue ICANN if it ever failed to live up to its bylaws.
For example, if ICANN refused to implement the decisions of an Independent Review Panel, the member could seek to have the ruling enforced by a court.
This is just one of many proposals made by the CCWG currently open for public comment.
Highly unusually for a public comment period, the ICANN board is going to be a commenter in this case. While its comments have not been published yet, it has taken advice from its lawyers at Jones Day that may give an indication of how it is leaning.
Wednesday night’s call was designed to give the board the chance to bring its initial thinking to the CCWG.
Instead, it wound up being almost entirely about the proposed membership model and the board’s statements that while it supported the CCWG’s proposals 100% it also wanted them fundamentally rewritten.
The board wants the idea of a Sole Member model thrown out and replaced with a new arbitration process that would be legally enforceable in California courts.
So, instead of a legal-entity “member” suing ICANN, some as-yet unidentified community entity would take ICANN to arbitration. The decision of the arbitration panel could then be enforced by the courts if ICANN failed to abide by it.
When CCWG members asked who, in the absence of a legal entity, would take ICANN to arbitration and then sue it, the board had no answer. Instead, directors said the CCWG’s legal advisers should talk to Jones Day to hammer out the “technical” details.
Some members claimed that it would be “impossible” to give the community legal standing to sue ICANN without a membership model. Others said that the board’s 11th hour suggested rewrites would make it “impossible” to hit the deadline for a final proposal by the Dublin meeting next month.
At least a third of the 2-hour 47-minute call was wasted as the CCWG struggled to understand the doublespeak the board had brought into the discussion.
Directors continually insisted that they “completely supported” CCWG’s proposals on enforcement “without reservation”, while simultaneously saying the Sole Member model should be thrown out.
Half way through the call, CCWG co-chair Thomas Rickert reflected exasperation among members: “There is obviously difficulty to understand by many on this call how you fully support what we are doing while proposing something which appears like a complete rewrite.”
Shortly thereafter, Chehade responded:
Why don’t we just agree that we are agreeing with you that the community must be able to get enforcement in California courts, that we will ensure that they have the standing to do it without question. And if we are all in agreement that we are in agreement with each other let’s then let the technical people go solve this. If they call come back and tell us that frankly that advice was flawed, then let’s deal with it then in good faith. But that’s what we’re sharing with you.
Directors said that the proposed member model might have unintended consequences, and that the US government may not approve a proposal that overly complicates ICANN’s legal structure.
An hour later, the CCWG was still scratching its head, nerves were beginning to wear, and the tone was getting increasingly testy as the CCWG repeatedly asked the board to explain how it could express support and simultaneously propose an alternative solution.
“There is absolutely no new proposal,” Chehade said, eventually. “We are embracing your proposal and the objectives of the community. Please hear me on this. There is no new proposal.”
Take your work and break it down: board removal, standing reconsideration, enhancing – getting the IRP back on the track we set, you know, fundamental bylaw, binding arbitration or mechanisms of enforceability. All of the things you have come up with, we are accepting. So when your reaction to our two last hours is that we’re refusing to add any accountability, I don’t know how you come to that frankly…
you yourself in the proposal say that this proposal is not finished, it needs a lot of work. So what we’re saying to you is let’s take this proposal which is not finished and let’s figure out ways to make it real, and real in the next few weeks so we can move forward…
The only area where we are telling you we would like to propose a different mechanism to achieve the same goal is the enforceability.
The whole three hours reminded me of a nightmare-scenario interview where the interviewee has been media-trained up the wazoo and refuses to sway from a set of vaguely scripted talking points.
But which proposal is the right one for ICANN?
Beats me. What does seem quite clear to me is that the board and CCWG are at odds now, despite what ICANN says, and that the expected delivery of a final accountability proposal by Dublin is in serious doubt.
Following the call, ICANN chair Steve Crocker posted a blog post that sought to clarify the board’s position, characterizing it as agreement in principle but disagreement on implementation. He wrote:
We have suggestions on how these [CCWG proposals] could be operationalized. With regards to the mechanisms for community enforceability, where the current proposal still warrants much detail that may not be achievable we have a suggestion on how to deliver on it in a stable way, as increased enforceability must not open up questions of, for example, capture or diminishing of checks and balances.
The Wednesday meeting’s audio, transcript and other notes can all be found here.
US government oversight of ICANN and the domain name system will end a year later than originally expected.
The National Telecommunications and Information Administration said last night that it has extended ICANN’s IANA contract until September 30, 2016, giving the community and others more time to complete and review the transition proposals.
NTIA assistant secretary Larry Strickling wrote that “it has become increasingly apparent over the last few months that the community needs time to complete its work, have the plan reviewed by the U.S. Government and then implement it if it is approved.”
Simultaneously, NTIA has finally published a proposal — written by ICANN and Verisign — for how management of the DNS root will move away from hands-on US involvement.
The extension of the IANA contract from its September 30, 2015 end date was not unexpected. The current contract allows for such extensions.
As we recently reported, outgoing ICANN CEO Fadi Chehade had guessed a mid-2016 finalization of the transition.
Regardless, expect op-eds in the coming days to claim this as some kind of political victory against the Obama administration.
Part of the reason for the extension, beyond the fact that the ICANN community hasn’t finished its work yet, is legislation proposed in the US.
The inappropriately named DOTCOM Act, passed by the House but frozen for political reasons in the Senate by Tea Party presidential hopeful Sen Ted Cruz, would give Congress 30 legislative days (which could equal months of real time) to review the IANA transition proposals.
There are basically three prongs to the transition, each with very long names.
The “Proposal to Transition the Stewardship of the Internet Assigned Numbers Authority (IANA) Functions from the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) to the Global Multistakeholder Community” is the first.
That was created by the multistakeholder IANA Stewardship Transition Coordination Group (ICG) and deals with how the IANA contract will be managed after the US government goes away.
The second prong comes from the Cross Community Working Group on Enhancing ICANN Accountability, which deals with how ICANN itself can improve its accountability to the internet community without the Damoclean sword of US intervention hanging over it.
The CCWG’s latest draft report would strengthen the ICANN board against capture by, for example, making certain bylaws harder to amend and giving the community the right to fire directors.
Both of these proposals are currently open for public comment here.
The third prong, which only appears to have been published this week, deals with the nuts and bolts of how changes to the DNS root zone are made.
The current system is a tripartite arrangement between IANA, NTIA and Verisign.
When a TLD operator needs a change to the DNS root — for example adding a name server for its TLD — the request is submitted to and processed by IANA, sent to NTIA for authorization, then actually implemented on the primary root server by Verisign.
Under the new proposal (pdf) to phase the NTIA out of this arrangement, the NTIA’s “authorization” role would be temporarily complemented by a parallel “authentication” role.
The proposal is not written in the clearest English, even by ICANN standards, but it seems that the current Root Zone Management System would be duplicated in its entirety and every change request would have to be processed by both systems.
The output of both would be compared for discrepancies before Verisign actually made the changes to the root.
It seems that this model is only being proposed as a temporary measure, almost like a proof of concept to demonstrate that the NTIA’s current authorization role isn’t actually required and won’t be replaced in this brave new world.
ICANN CEO Fadi Chehade has laid out his current best thinking for the timeline of the IANA’s transition from US government oversight, and he’ll be gone well before it’s done.
At the opening ceremony of the ICANN 53 meeting in Buenos Aires today, Chehade described how June 2016 is a likely date for the divorce; three months after his resignation takes effect.
I asked our community leaders, “Based on your plans and what you’re seeing and what you know today, when could that finish?” The answers that are coming back to us seem to indicate that by ICANN 56, which will be back in Latin America in the middle of 2016, a year from today, the contract with the US Government could come to an end.
He showed a slide that broke the remaining work of the transition into three phases.
Work being carried out within ICANN is not entirely to blame for the length of time the process will take.
The US National Telecommunications and Information Administration needs 60 to 90 days to review the final community-developed transition proposal.
And under forthcoming US legislation, 30 legislative days will be required for the US Congress to review the NTIA’s approval of the plan.
Thirty legislative days, Chehade explained, could mean as many as 60 actual days, depending on the yet-unpublished 2016 Congressional calendar.
He urged the community focus hard on Phase One in his graphic — actually producing a consensus transition plan.
The target for delivery of this is the next ICANN meeting, 54, which will take place in Dublin, Ireland from October 18 to October 22 this year.
The US plan to remove itself from its unique DNS oversight role is about creating a coalition of nations to thwart attempts by Russia and other “authoritarian” countries to increase government control of the internet.
That’s according to Larry Strickling, assistant secretary at the US National Telecommunications and Information Administration, who delivered a beautifully succinct explanation to confused senators at a hearing in Washington DC this week.
Despite unnecessary diversions into issues such as net neutrality and copyright protection — which I’m sure was not at all due to senators trying to score points with their corporate paymasters — the Commerce Committee hearing was surprising well-informed and not nearly as angry as it could have been.
Senators, mostly Republicans, reiterated their concerns that for the US to give up its role in the IANA functions contract could invite a takeover of ICANN by unfriendly nations such as China and Russia, thereby harming internet freedom.
At one point, Strickling was asked by a senator: “If there’s not a problem, what are we trying to fix here?”
His answer was one the best explanations of the political back-story of the transition that I’ve heard, so I’m going to quote it in full here.
There has been a problem, sir. At the end of 2012 when the world’s governments got together in Dubai for the ITU WCIT — World Conference on International Telecommunications — you had around 80 countries who voted to say the ITU needs to be more involved in internet governance. These were largely countries in the developing world siding with the more authoritarian regimes.
Part of the impetus for this was the continued irritation that many governments have, that has been exploited by authoritarian countries, that the United States with its special role with ICANN is in a position to control the internet in these developing counties and to turn it off in these countries and to otherwise interfere with the ability of countries to manage their own affairs with respect to the internet.
After this [IANA transition] announcement was made the next two large international meetings at which governments came together you saw a major change in position among the developing countries. We didn’t see any change in position from the authoritarian countries — and you’re not, they’re not going to change their views on this. But the key to succeeding in this on the global stage is to bring the rest of the world along with us, and that’s what we saw at the NETmundial conference in Brazil last April where the only countries who spoke out against the multi-stakeholder model of internet governance were Russia and Cuba.
We then flash forward to the ITU plenipotentiary conference in Busan last November and again you had Russia with the same proposals it’s been making for 10 years: that these functions ought to be transferred to the ITU and managed by governments. And that was beaten back by a coalition of developed and developing countries. So we’ve seen immediate results, or significant results, by the basis of our having been able to take this issue off the table for these countries, to get them to look at what’s really best for them without this overhang of a US role that was unique among governments and which was a source of irritation to governments and was being exploited to our detriment by foreign governments.
The fact of the matter is that the role we play with respect of the IANA functions is a clerical role. It’s truly stewardship. As I said before, we don’t provide any oversight of the policy judgments that ICANN and the multi-stakeholder community make. We participate as a government in the Governmental Advisory Committee, and we will continue to do that in future and will be vigorous advocates for a free and open internet.
The special role we play with respect of the IANA functions is totally administrative and clerical, yet it has been exploited by other governments — authoritarian governments — to our detriment. We’ve taken that off to the table by announcing this transition and as we complete it we will continue to see the benefits of that through the continued adoption and support for this model by the developing world.
His views were echoed by ICANN CEO Fadi Chehade more than once during the hearing, talking about how the transition process is designed to bring on board the “middle countries”, rather than already-allied nations or the fringe, minority authoritarian countries.
He cited Brazil as the key example of a government once in favor of more ITU control of the internet that is now, largely due to Chehade’s outreach and its key role in the NETmundial conference, firmly in the multi-stakeholder model camp.
The entire archived hearing can be viewed here.