The Gandi Community

So about that ICANN IANA transition

At midnight on October 1 after the expiration of the US Department of Commerce’s contract, IANA authority reverted directly back to ICANN, for the first time removing  nominal US government control over name and number delegation on the internet.

Back in March, we discussed the creation and development of the IANA function by Jon Postel and the mini-coup he effected in 1998 when he unilaterally instructed regional root nameserver operators to switch from Network Solutions’s root server to IANA’s root nameserver.

We noted that this action led directly to the creation of ICANN by the Clinton administration to take over the IANA function. What we didn’t mention at that time, though, was the unique model that ICANN represented as an organization responsible, essentially, for internet governance. Nor did we directly bring up the impending deadline which happened at the end of last month: the expiration of the US Department of Commerce’s contract for IANA functions.

The plan, ever since Jon Postel provoked the Clinton administration into creating ICANN, has been to devolve responsibility of IANA functions away from the US Department of Commerce’s contract and transition to a “multi-stakeholder model,” namely, the one created by ICANN.

Now, with the expiration of the Department of Commerce’s contract on September 30, the transition away from any direct governmental control over IANA functions, even the nominal control by the Department of Commerce, is set to take place.

But not without some challenges. ICANN opponents sought to undermine the transition and wanted to renew the Department of Commerce contract.

We’re going to get a little topical here. Not because we’re trying to make a political statement but because delegating new domains is kind of our home turf, so we happen to know a little bit about this.

What are IANA functions?

If you want the history, see our Tech Fundamentals post on it, but real briefly, IANA is responsible for what are mundane but essential functions required for the internet, such as:

  •     delegating IP address blocks to regional Internet registries, which in turn delegate them, for example, to ISPs, who then delegate them to their customers
  •     administer the root nameservers, which return lists of authoritative name servers for TLDs
  •     administer protocol parameters like URI and character-encoding sets
  •     run the timezone database that is mirrored by computers and other devices on the internet

Or, to put it succinctly: the IANA functions aren’t the “phonebook” as they have often been compared to in recent media, they tell you where to find the phonebook. They’re at the top of the hierarchy for anytime you (or your computer) need to know how and where to find another device on the internet.

What’s at stake?

The question posed by the IANA transition is the question of who gets to govern the internet. There are certain people who claimed that the Department of Commerce contract should have been renewed rather than have the IANA functions devolve directly to ICANN essentially because the US government should continue to govern the internet.

The reason Jon Postel’s 1998 redelegation is significant is precisely because it demonstrated that US government control over IANA was symbolic at best. Postel’s authority effectively superceded the Department of Commerce and it was the informal consensus among root nameserver operators to comply with Postel’s authority that won the day.

There is the argument out there, though, that world governments should have equal authority to regulate IANA functions. Various international efforts have been made to move the IANA functions under the purview of some international body, usually part of the United Nations. Many of these proposals are colored with language referring to concepts like “cyber-sovereignty.”

Cyber-sovereignty movements seek to formalize a regional control model subservient to local governments, specifically for those critical root nameserver and IP delegation functions. In a sense, to Balkanize the internet.

The best possible outcome would mean nothing other than the status quo in many places, but it’s worth noting the US government has historically exerted little control, compared to what it could have, over IANA functions (more on that below).

The choice, then, was essentially between two options:

  1. Allow ICANN to formally take over and end the Department of Commerce contract
  2. Renew the contract and thereby open a new round of discussions internationally about how IANA functions should be governed

To be clear: (most) everyone agrees that what isn’t broke shouldn’t be fixed, that ICANN should be left intact and should continue as it has. The main question was whether the nominal regulatory authority of the US government should be removed entirely or if it should be replaced by regional or intergovernmental authorities (which may choose to exert more influence than the US government historically has).

What’s so great about ICANN

It’s not so hard to find fault with ICANN and its apparent inefficacy in the face of your pet problem like its poor record on privacy issues. Or to characterize its meetings as dry and tedious, but, really, ICANN is a unique proposition.

We haven’t extensively covered ICANN’s structure, nor will we here (maybe later).

They call it a “multi-stakeholder model.” Often, this is construed as being controlled by businesses and other private interests, but the reality is that ICANN is a step closer to an open and “democratic” model than what this characterization suggests.

ICANN at least aims for a few core values, and chief among them are openness and inclusiveness. For example, despite being headquartered in Los Angeles, ICANN meetings are held at sites around the world, rotating between continents. In June 2015, ICANN 53 was held in Buenos Aires. ICANN 54 last October was held in Dublin. Then, ICANN 55 took place in Marrakech in March. ICANN 56 was this past June in Helsinki and ICANN 57 is coming in November to Hyderabad.

Another way that ICANN fulfills its commitment to openness and inclusivenesss is that ICANN meetings are free and open to all, with public forum sessions and live streaming for remote audiences who can even chime in through a chat. And they also takes public comments on their website and blog commenting.

ICANN’s decision-making process also relies heavily on building consensus and aims for a “bottom up” agenda.

These “democratic” elements are all baked into ICANN’s bylaws and they’d need consensus to be changed.

And significant to this most recent debate is the role governments play in this process. They obviously do have a seat at the table since world governments are no doubt stakeholders in internet governance. ICANN’s structure includes governments’ direct input in their decision-making through the Government Advisory Committee, or GAC for short (like the sound you make when you think about wading chin-deep into ICANN’s organization structure).

The GAC advises ICANN on the legal aspects of ICANN policy, especially as it relates to national laws and international agreements. But they are not a decision-making body. But on the other hand, the ICANN board does have to pay special attention to GAC advice even if they don’t have to abide by it.

.xxx and nGTLDs

In theory, this all sounds good, but in practice, ICANN’s multi-stakeholder model has suffered a couple of challenges. There are two primary instances in which ICANN’s multi-stakeholder model has been put to the test to date and, in both cases, they involved going against the wishes of a government.

The first was in regards to the sponsored TLD .xxx, which was created by and for the adult entertainment industry.

Despite strong objections to the creation of the .xxx TLD, most especially from world governments indepdently and through the GAC, ICANN ultimately proceeded with its decision to delegate the TLD.

Foreign governments, among which apparently was the European Commission, then lobbied the US government to override the decision of the ICANN board and disallow .xxx from being added to the root.

The IANA contract would have allowed the US to unilaterally block .xxx from being delegated, but they did not do so.

The second is in regards to new gTLDs.

Ardent followers of this page are no doubt intimately familiar with the comings and goings of new gTLDs, but on the eve of its introduction, ICANN was awash with criticism, primarily from copyright and trademark protection firms,  who managed to lobby the US Senate and the House of Representatives to take up the issue in a series of hearings. The US Congress then asked the Department of Commerce to intervene to slow down the new gTLD program, going so far as to request ICANN’s contract be reviewed.

In the end, though, none of the objections were founded, though the DoC did find fault with ICANN for not communicating better and educating the public more on the almost seven years of work that went into creating a new gTLD program that would have consumer protections and trademark violation mitigation processes baked in.

The lesson of these two challenges to ICANN’s multi-stakeholder model is that both for objections raised regarding .xxx and for objections to the new TLD program, the final appeal came down to the US Department of Commerce and both times the DoC refused to intervene. In other words, when governments, whether the US government or other world governments sought to intervene in ICANN’s decision-making process, it was precisely to the DoC and the power to revoke ICANN’s contract that they made their appeals.

And now it is exactly this contract which has expired and IANA functions will soon devolve directly to ICANN.

But more importantly, whatever the outcome, Jon Postel already demonstrated in 1998 that authority over IANA functions does not rest with the US Department of Commerce contract but in the internet community itself. ICANN is the best attempt so far at capturing all the voices of that community and to rule by its founding principle: practical, common-sense, consensus-based decision-making.

However, it’s clear in the two highest-profile challenges to the authority of ICANN’s multi-stakeholder model that ICANN was most susceptible, for better or for worse, to influence from world governments through its contract with the US Department of Commerce.