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US transfers ICANN oversight to global Internet community

Posted by malcolm on Monday, October 3rd, 2016 at 8:58

On Saturday 1st October, the US allowed its contract with ICANN for performance of the IANA technical functions to expire. This completes the process for transferring oversight of ICANN from the US government to the global Internet community.

Transfer of ICANN oversight was first envisaged 18 years ago, as a policy of the Clinton administration, and was revived in March 2014 when U.S. Department of Commerce agency the NTIA asked the global Internet community to come up with a plan for taking responsibility for the IANA functions and overall oversight of ICANN. Since then a massive community effort involving hundreds of people, dozens of physical meetings, thousands of man-hours and tens of thousands of e-mails assembled a complex plan to replace the US role with global multistakeholder oversight.

Two elements of the transition proposal turned out to be relatively straightforward. The numbers community developed the CRISP plan for ICANN's role in IP addressing, which maintains ICANN's very limited role in the assignment of IP addresses: the IANA function is simply to co-ordinate the allocation of IP address blocks between the Regional Internet Registries (RIRs) and to certify the adoption of global addressing policies that have already been adopted by the RIRs and proposed by them for global status. As the RIRs already have a Memorandum of Understanding with ICANN that provides for dispute resolution, and as it has worked satisfactorily since it was adopted in 2004, the main feature of the CRISP plan was to reaffirm the existing mechanism, replacing the contract between ICANN and the US government with one between ICANN and the RIRs.

Similarly, the IANA functions with respect to Internet protocols are very limited: ICANN acts as the authoritive registry of protocol parameters, but change control on this registry lies exclusively with the Internet Engineering Taskforce (IETF).  As with the RIRs, the IETF also has a longstanding Memorandum of Understanding with ICANN that describes and enforces these arrangements. The IANAPLAN response from the protocols community therefore focussed on reaffirming this status.

Much more complex was the proposal from the domain names community, known as the CWG-Stewardship proposal. In the case of domain names, ICANN not only performs the limited technical function encapsulated within IANA, for which the US government had formal oversight but (and here is the distinction with its role in respect of IP addresses and protocol parameters) ICANN also acts as the change control authority determining what goes in the registries it operates - namely, the DNS root zone file. Essentially, ICANN gets to determine what top level domains exist, and on what terms. Here there is a further distinction between country-code top level domains, or "ccTLDs", (such as .uk for the United Kingdom and .ru for Russia) and generic top level domains, or "gTLDs" (such as .com, .travel and the controversial .xxx). For country-code domains. ICANN has a more limited role interpreting a pre-existing standard for the recognition of ccTLD operators, and ccTLD are responsible for their own policies on matters such as registration and dispute resolution. Nonetheless, there remains considerable work in developing the principles ICANN needs to abide by for ccTLDs, and managing the implementation of those principles. That ICANN remains the convening body for the ccTLD operators developing those principles, and that that body therefore also operates under ICANN rules, gives ICANN a certain influence; not all ccTLD operators recognise ICANN's role here, and many work constructively with it while denying ICANN's supervening authority. Despite all this, the interest of ccTLD operators in contributing to the CWG-Stewardship proposal was to maintain ICANN's adherence to pre-agreed principles for the administration of the root zone file, while ensuring operational continuity and stability. This resulted in a structural separation of the conduct of the IANA functions into a "Post Transition IANA" (PTI) that is a subsidiary of ICANN, so that these functions can be separated and transferred away from ICANN should ICANN fail. A Customer Standards Committee was created to oversee day-to-day operations and performance, ensuring that ICANN kept to agreed service levels. An IANA Functions Review group would set those standards, and would have the power to decide whether separation from ICANN was necessary and to begin the process for bringing that about.

The situation in respect of gTLD domains is more complex still. For gTLD domains, ICANN is itself the policy authority. That means ICANN gets to set the rules not only for what kinds of gTLDs shall exist, how they shall be allocated and to whom, but what policies those gTLD shall follow themselves, from performance and financial requirements to the terms and conditions for end-user registrants, and such controversial matters as dispute resolution policies and acceptable use policies. Through this, ICANN has in principle the capability to become a general global regulatory authority for the Internet, using the power of suspension of domain names to enforce its rules (a mechanism governments have sometimes used in the past to enforce their domestic laws on the Internet). Thus, the gTLD community shared all the concerns of the ccTLD operators relating to stability, service and performance levels and ensuring that ICANN continued to be an effective operator of the ICANN functions, and that a replacement could be made if necessary, and as such played a full part in the development of the CWG-Stewardship proposal jointly with the ccTLD operators.However, whereas the ccTLD operators were mainly concerned to protect their policy-making automony, the gTLD community needed to ensure that ICANN was fit to be the supreme authority for making gTLD policy when there was no longer the possibility of appealing to the US government to intervene and extract commitments from ICANN, as it had done in the past. Therefore, in addition to CWG-Stewardship, the gTLD community called for work to be done to enhance ICANN's overall accountability to the Internet community.

In response to community pressure for internal reform to meet the NTIA's challenge, ICANN created the Cross-Community Working Group on Enhancing ICANN's Accountability ("CCWG-Accountability") in November 2014. This CCWG included representation from all parts of the ICANN community, not just gTLDs but also ccTLDs, numbers, protocols as well as end-users and governments. At first, ICANN had argued that this was a separate internal process distinct from the IANA transition process. However the NTIA had said that transition could only proceed if there was consensus from the global Internet community to accept and support transition, including support for the plan for how ICANN was to operate the IANA functions post-transition. The gTLD community made clear that their support was conditioned upon an acceptable outcome from CCWG-Accountability, a position it formalised in June 2015 when asked to formally endorse the outcome of the CWG-Stewardship.

CCWG-Accountability therefore became the fourth, most complex and by the far the most controversial piece of the IANA transition puzzle. Its first proposal had to be entirely redrafted twice following publication for broader public comment (despite having been produced by a group that was not only entirely visible to the public in all its meetings, teleconferences and e-mail exchanges, but was also open to full participation by all comers), and was significantly amended one further time to meet last-minute objections, mainly from the ICANN Board. CCWG-Accountability's final proposal contains twelve recommendations for reform of ICANN, establishing new structures for an "empowered community" with the power to rejct ICANN's budget and dismiss ICANN's Board, and other attendant safeguards. Perhaps as importantly, it establishes a clearly defined limited Mission for ICANN, and core values and fundamental commitments to which it must adhere in all its work. CCWG-Accountability proposed that the limited Mission narrowly limit ICANN's role preventing it from becoming a general regulatory authority for the Internet and, in particular, explicitly prohibiting ICANN from attempting to regulate Internet services themselves, or Internet content. These principles, while broadly stated, have been clearly defined so as to be justiciable, and the proposal establishes the right for any person harmed by ICANN acting in conflict with these values to have access to binding arbitration through an Independent Review Process ("IRP") - an arbitration process that will, at least initially be run by the International Centre for Dispute Resolution. CCWG-Accountability also recommended the continuation of its work to further reform ICANN post-transition, with a second workstream to look at issues such as ICANN's respect for human rights, diversity and transparency, reforms to enhance the accountability of ICANN's own community groups to their broader stakeholders, and other matters.

The three main proposals were assembled into a coherent, consistent proposal by yet another multistakeholder body; the IANA Stewardship Coordination Transition Group reviewed the proposals to ensure they met the fundamental requirements set by the NTIA, both in terms of the content and to ensure that the process had been fair and open and genuinely did represent the consensus position of the large number of bodies of separate stakeholder groups who formed part of this process. This was then sent to the NTIA in March 2016 and approved by the NTIA in June. In preparation for transition, the combined proposal together with CCWG-Accountability's recommended reform package was implemented by the ICANN Board through the adoption of new governing bylaws and Articles of Incorporation. Only last minute political attacks in the US Congress and an attempt by four US states to stop transition in court stood in the way. With the judge unimpressed, and insufficient Congressional opposition, the IANA Functions Contract expired on schedule on 1st October, leaving the newly reformed ICANN in undisputed control of the DNS root and the IANA technical functions, under the oversight not of the US government but the global Internet multistakeholder community.

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