2016-07-16

ICANN, NTIA, IANA Transition, Fundamental Problems, the Macro View

"We live a very complex world but we want simple answers.  What we end up doing is take a micro view of a situation because we have a sense we can grasp the problem better that way.  A macro view is more challenging because it requires you to handle more uncertainty."--Micro/Macro View | ceri.msu.edu (http://www.ceri.msu.edu/chatter/micromacro-view/).*


Above video is from IGF-USA 2016, July 14, 2016, program notes here.
Keynote: Larry Strickling, NTIA, US Dept. of Commerce (text of prepared remarks here).
Moderator: Shane Tews
Panelists:
  • Steve DelBianco, Executive Director, NetChoice
  • Gordon Goldstein, Managing Director - Head of External Affairs, SilverLake
  • John Kneuer, President and Founder of JKC Consulting LLC and Sr. Partner, Fairfax Media
  • Kristian Stout, Associate Director for Innovation Policy at the International Center for Law and Economics (ICLE)
  • Berin Szoka, President, TechFreedom
  • Jonathan Zuck, President, ACT
The above video will likely soon be forgotten, though it really shouldn't be, which is one reason Domain Mondo is publishing this post. It provides a snapshot of the IANA stewardship transition, plan and process, at this point in time. Pay particular attention to the concerns raised by some of the panelists.

As has been noted before on Domain Mondo, there are fundamental problems in the IANA stewardship transition, both in process and in substance, including ICANN accountability WS1 mechanisms. Here are some of the pros and cons (depending upon your point of view), of the Obama administration's (NTIA) IANA stewardship transition of U.S. government oversight to ICANN, a California corporation:
  • Solves (or at least is intended to solve) the U.S. government's problems in the wake of the Snowden revelations, including global criticism of the perceived role of  the U.S. government in the operation of the internet, thereby pre-empting a UN (or ITU) multilateral solution that would give governments a leading role;
  • Fulfills the promise of the U.S. government in 1998 to "privatize" and transition the US government's "historic stewardship role of internet oversight" to the "global multistakeholder community;"
  • False Narrative: the Obama administration (NTIA) bumbled the IANA transition from the beginning (March 2014) in two critical aspects: (1) NTIA pre-empted consideration of ICANN alternatives by the global internet community, and instead, in top-down fashion designated only ICANN, a California corporation and current IANA functions contractor, as the sole convener of the IANA transition planning process, thereby, in effect, pre-ordaining the end result and declaring ICANN to be the representative body of the "global multistakeholder community" and successor to NTIA in its "stewardship role." Unfortunately, as most knowledgeable people recognize, ICANN is not today, and never has been, truly representative of the global multistakeholder community ("massive power imbalance" within ICANN, absence of full global participation, a "broken" GNSO (ICANN's main policy-making body), etc.,--see News Review: ICANN, China, IANA: ex-CEO Fadi ChehadĂ©'s Sad Legacy). As a result, the IANA transition is already being dismissed and attacked globally as a U.S. government scheme to retain power and control over the internet; and (2) NTIA failed to recognize the extent of ICANN dysfunction and how much ICANN is not trusted, even by ICANN's own stakeholders, who in a rare moment of unanimity, insisted on adding an accountability (WS1) component to the IANA transition planning process, months after the NTIA announcement in March, 2014;
  • Immunity and Liability: once ICANN is operating "naked" without any contract from the U.S. government, or other sovereign authority, and lacking any operational status by way of statute or international treaty, such as that granted to the United Nations and its agencies, ICANN will no longer have the benefit of certain legal defenses based on U.S. law, including government contractor immunity, and may be subject to legal claims and liabilities anywhere a claimant asserts, and court affirms, jurisdiction.
  • Antitrust: as acknowledged by NTIA's Larry Stickling in the video above, ICANN "has always been and will continue to be subject to antitrust laws" of the United States (DOJ, FTC, and private antitrust actions), but with the U.S. government contract expiring, ICANN, as an unregulated global monopoly after September 30, 2016, as well as some of its "contracted parties," namely, the gTLD registry operators (each of which are granted exclusive global monopolies by ICANN), may be more likely to face antitrust actions in the future, not only in the U.S., but elsewhere.
  • Untested, unproven: none of the ICANN accountability mechanisms developed by the "ICANN community" in WS1 have yet been implemented, tested and proven. If the accountability mechanisms prove to be ineffective, there may be nothing either the U.S. government or ICANN community can do, leaving the global multistakeholder community with a dysfunctional, unaccountable ICANN.
  • Critical issues left to Work Stream 2 (WS2): work involving ICANN's jurisdiction and other issues was deferred to a later phase by ICANN and its CCWG-Accountability. The outcomes of WS2 will not be known until 2017, long after the IANA transition is complete.
The above list is not exhaustive, and others, such as U.S. Senators Cruz, Lankford, and Lee, have raised concerns related to foreign governments and free speech. Nevertheless, there is now little doubt that the Obama administration fully intends to allow the IANA functions contract expire on September 30, 2016. Caveat Emptor.

*For a further look at a micro/macro view comparison, with due credit to the Michigan State University source (first link above) and also to Peter Marber (petermarber.com):

Micro View:
  • Based on recency (present moment) or historic time biases; often failing to recognize changes in the environment, ecosystem, trends or indicators, or other new, evolving factors. Everything is predicated on the present or past perspective, even if past experience may no longer be applicable ("past success is no guarantee of future results"), or past policies no longer work (every economic model, every HFT algorithm, eventually fails);
  • Assumes larger degree of certainty and predictability than warranted; humans like certainty and often assume certainty, discounting risks, which has its own consequences. What is the level of information required, needed or even efficiently obtainable, before taking action?
  • Assumes, or locks-in, only one way;
  • Primary emphasis on control and concentrated power;
  • Cautious relationships, some participants (stakeholders) count less than others;
  • Policy changes are reactive not proactive;
  • Views issues as separate and compartmentalized, to be dealt with separately.
Macro View:
  • Forward time bias; tries to anticipate and think longer term;
  • Assumes more uncertainty, ambiguity and unpredictability; there is never a perfect answer or solution;
  • Many ways forward (more than one right way) depending on how one wants to arrange and rearrange the parts;
  • Influence is spread widely among a range of players;
  • Partnerships abound between countries, states as well as non-state agencies and others, such as non-profits (NGOs), education, business, and other interests or stakeholders;
  • Policy is proactive, involving many players, and evolving to fit the circumstances;
  • View issues as interrelated, integrative and global.

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